Wayne Willis v. Executive Office of Health & Human Services (SPR 20200571)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 3, 2019 SPR 20/0571 Alexander deBlieck Records Access Officer Executive Office of Health & Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Wayne Willis appealing the response of the Executive Office of Health & Human Services (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Willis requested “[a]ll computer records, emails, files, notes, resumes, employment applications, current position held at DDS, current job description, political donations record, time off the job as sick pay or vacation for [11 identified employees].” The Office responded on March 6, 2020, providing several categories of responsive records, and directing Mr. Willis to other custodians who may be in possession of additional records. On March 19, 2020, the Office provided an additional response, indicating that it has provided all responsive records in its possession, aside from employee resumes, which it is withholding pursuant to the personnel clause of Exemption (c). Unsatisfied with this response, Mr. Willis petitioned this office and this appeal, SPR 20/0571, 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, § 10A(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, § 10(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 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

Alexander deBlieck SPR20/0571 Page 2 April 3, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Office’s March 19th response In its March 19, 2020 response, the Office indicates that it is withholding responsive resumes pursuant to the personnel clause of Exemption (c) of the Public Records Law. 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 of Exemption (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 particular 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 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).

Alexander deBlieck SPR20/0571 Page 3 April 3, 2019 Under the first clause of Exemption (c), the Office states that it is withholding resumes “as they are personnel records submitted to EOHHS as part of the job application process and are used in making employment decisions.” 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 similar matter 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 issue, at this time pending a resolution to the AGO’s review. No duty to create records In his March 22nd appeal petition, Mr. Willis asks several questions regarding the Office’s responses to his requests and the process by which the responses are generated. Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Based on the above, I will consider this administrative appeal closed. If Mr. Willis is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis