Colman Herman v. Massachusetts Water Resources Authority (SPR 20200588)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 9, 2020 SPR20/0588 Angela Atchue, Esq. Associate General Counsel Massachusetts Water Resources Authority Charlestown Navy Yard 100 First Avenue, Building 39 Boston, MA 02129 Dear Attorney Atchue: I have received the petition of Colman Herman appealing the response of the Massachusetts Water Resources Authority (Authority/MWRA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 29, 2020, Mr. Herman requested a copy of “. . . the resume of Frederick Laskey, the executive director of the MWRA.” On March 16, 2020, the Authority 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 Authority’s response, Mr. Herman petitioned this office and this appeal, SPR20/0588, 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. If there are any fees associated with a response a written, good faith estimate must be 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

Angela Atchue, Esq. SPR20/0588 Page 2 April 9, 2020 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 Authority’s March 16th response In its March 16, 2020 response, the Authority asserts that the responsive record is being withheld under Exemption (c), because “[e]mployee resumes are submitted to the MWRA as part of the job application, and as such are unambiguously ‘personnel’ records within the meaning of [Exemption (c)].” Citing Wakefield, the Authority contends that “[p]ersonnel information is not subject to disclosure, and as such the MWRA must comply with the governing law.” The Authority, however, provides a link which contains a summary of the professional background and accomplishments of the identified individual. 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

Angela Atchue, Esq. SPR20/0588 Page 3 April 9, 2020 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, SPR20/0588, at this time pending a resolution to the AGO’s review. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman