Colman Herman v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2020 SPR20/0411 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3 510 Boston, MA 02116 · Dear Attorney Doyle: I have received the petition of Colman Herman appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 7, 19, and 21, 2020, Mr. Herman requested copies of the resumes of Marie Benson, Eileen Fenton, and Jacqueline Goddard. The Department responded to these requests on February 27, 2020, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's responses, Mr. Herman petitioned this office and this appeal, SPR20/04 l 1, was opened as a result. I note that the request pertaining to Marie Benson, was the subject of a previous appeal. See SPR20/0364 Determination of the Supervisor of Records (February 27, 2020). I closed SPR20/0364 after I learned that the Department had provided Mr. Herman with a response. Tlte Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but.must also state why the exemption applies to the withheld One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

William J. Doyle, Esq. SPR20/0411 Page 2 March 12, 2020 or redacted po1iion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's February 27'" responses In its February 27, 2020 responses, the Depaiiment states that it does possess resumes of the identified individuals, but claims that they are exempt from disclosure under the first clause of Exemption (c). The Department asserts that "[e]mployee resumes are exempt from disclosure pursuant to the first clause of exemption 'c' because they are submitted to MassDOT as employment applications, which are unambiguously 'personnel' records within the meaning of the 'c' exemption." Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause ofE xemption (c) - personnel Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a paiiicular employee," may be withheld pursuant to the first clause of Exemption ( c ). Wakefield Teachers Ass 'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395

William J. Doyle, Esq. SPR20/0411 Page 3 March 12, 2020 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Please note that this office has previously held that resumes are public records and subject to disclosure. However, where the issues surrounding the public status of the requested resumes are similar to the issues raised in SPR19/2399, please note that on March 10, 2020, I referred SPR19/2399 to the Office of the Attorney General (AGO) for enforcement. See SPR19/2399 (Determination of the Supervisor of Records (December 10, 2019). Consequently, I decline to opine on this appeal, SPR20/0411, at this time pending a resolution of the AGO's review. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman