Colman Herman v. Massachusetts Growth Capital Corporation (SPR 20200587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2020 SPR20/0587 Neil Martin Chief Operating Officer Massachusetts Growth Capital Corporation Schrafft’s City Center 529 Main Street, Suite 201 Charleston, MA 02191 Dear Mr. Martin: I have received the petition of Colman Herman appealing the response of the Massachusetts Growth Capital Corporation (Corporation) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 8, 2020, Mr. Herman requested a copy of “. . . the resume of Lawrence Andrews, president and CEO of the Massachusetts Growth Capital Corporation.” On March 21, 2020, the Corporation provided a response, denying access to the responsive record pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Corporation’s response, Mr. Herman petitioned this office and this appeal, SPR20/0587, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Neil Martin SPR20/0587 Page 2 April 8, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Corporation’s March 21st response In its March 21, 2020 response, the Corporation asserts that the record is exempt from disclosure pursuant to Exemption (c), the personnel exemption. The Corporation states that “[e]mployee resumes are particularly exempt from disclosure pursuant to Exemption C as they are submitted as part of job applications, which are unambiguously personnel records within the meaning of Exemption C.” Citing Wakefield, the Corporation explains that “Mr. Andrews’ resume was submitted as part of his application for employment and is part of his personnel file, and therefore is exempt from disclosure.” The Corporation, however, provides a link that contains the professional background of the identified individual and makes reference to a previous determination, SPR19/0469, to support its position. 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

Neil Martin SPR20/0587 Page 3 April 8, 2020 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). 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 appeal, SPR20/0587, at this time pending a resolution of the AGO’s review. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman