Patrick Higgins v. Fall River, City of - Office of the City Clerk (SPR 20200451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 13, 2020 SPR20/0451 Alison M. Bouchard City Clerk City of Fall River One Government Center, Room 227 Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Patrick Higgins appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 4, 2020, Mr. Higgins appealed the redactions of "personal contact information from people who are being recommended by the Mayor for appointment as appointed members of public bodies" contained in responsive resumes. Previous appeal This request was the subject of a previous appeal. See SPR20/0251 Determination of the Supervisor of Records (February 24, 2020). The City's February 2JS1 Response The City responded on February 21, 2020 and denied access to the records and cited Exemption (c) and (o) of the Public Records Law G. L. c. 4, § 7(26) (c), (o). Unsatisfied with this response, Mr. Higgins petitioned this office and this appeal SPR20/0451 was opened as a result. The 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, § lOA(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). 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

Alison M. Bouchard SPR20/0451 Page 2 March 13, 2020 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, § 1O (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 or redacted portion of the responsive record. In its February 21st response the City denied access to responsive records under G. L. c. 4, §7(26) Exemption (c) of the Public Records Law. Exemption (c) Exemption (c) applies to: 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 -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 comis 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 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

Alison M. Bouchard SPR20/0451 Page 3 March 13, 2020 considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. ofWestpmi, 401 Mass. 306, 309 (1987). Second clause -Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Prope1iy Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals. Inc. (PETA) v. Department of Agricultural Resources, 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,428 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 292. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its February 21st response, the City states, "resumes are part of a personnel file and, as such, are specifically excluded from the statutory definition of a public record. Since resumes are excluded from public records, the personal information contained therein, such as home addresses and phone numbers, should be redacted prior to submission to the City Council. This is of patiicular impo1iance when the redacted information is not only personal in nature but also often pertains to volunteer board members who are not public employees." Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general comi, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the

Alison M. Bouchard SPR20/0451 Page4 March 13, 2020 general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. C. 4, § 7(26)(0). Please note that this office has previously held that resumes are public records and subject to disclosure. However, on March 10, 2020, I referred a matter raising similar issues 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, SPR20/0451, at this time pending a resolution to the AGO's review. Sincerely, Rebecca S. Murray Supervisor of Records cc Patrick Higgins