Matthew Szafranski v. Department of Veteran Services (SPR 20201033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2020 SPR20/1033 Stuart Ivimey General Counsel Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Matthew Szafranski appealing the response of the Department of Veterans’ Services (the Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Szafranski requested letters of recommendation concerning the hiring of Bennett Walsh for the position of Superintendent of the Holyoke Soldier’s Home. The Department provided a response on June 18, 2020, indicating that it is withholding responsive records pursuant to the personnel clause of Exemption (c) of the Public Records Law. Unsatisfied with this response, Mr. Szafranski petitioned this office and this appeal, SPR 20/1033, 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. G. L. c. 66, § 10(b)(iv). 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

Stuart Ivimey SPR20/1033 Page 2 July 14, 2020 Current Appeal In its June 18, 2020 response, the Department states that “[t]he letters of recommendation and communications related to hiring for the HLY Superintendent position are exempt from disclosure pursuant to the first clause of M.G.L. c. 4, § 7, clause 26(c) as they are personnel records.” 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 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).

Stuart Ivimey SPR20/1033 Page 3 July 14, 2020 Letters of Recommendation In its response, the Department states that “[t]he requested letters of recommendation were submitted as part of the job application process and were reviewed with other application material in making the decision to employ Mr. Bennett Walsh with the Soldiers’ Home in Holyoke.” The Department argues that “the letters of recommendation and correspondence related to hiring for the superintendent position fall within the ‘core categories’ of personnel information exempt from disclosure under the first clause of exemption (c).” The Legislature has addressed the question of the public status of letters of recommendation by enacting G. L. c. 66, § 3A: Recommendations for employment submitted in support of candidates hired by the commonwealth; use of recommendation by hiring authority. Section 3A states: Recommendations for employment submitted in support of candidates who are hired by the commonwealth, or any political subdivision of the commonwealth, in the position to which the recommendations were applicable, shall be considered public records under section 7 of chapter 4 and this chapter; provided, however that this shall not apply to internal communications. Recommendations for employment submitted in support of candidates applying for employment by the commonwealth, or any political subdivision of the commonwealth, shall not be considered by a hiring authority until the applicant has met all other qualifications and requirements for the position to be filled; provided, however, that a hiring authority may, in accordance with said agency's regular practice for conducting reference checks, contact and speak with a reference provided to it by a candidate for employment, or contact and speak with any person who has submitted a written recommendation on behalf of a candidate for employment with said agency. G. L. c. 66, § 3A. The Department is advised that to the extent that G. L. c. 66, § 3A applies to the employment references, those records are subject to disclosure under the Public Records Law. The Department is ordered to provide the requested references or a response explaining why G. L. c. 66, § 3A does not apply to these requested references. Conclusion Accordingly, the Department is ordred to provide a response to Mr. Szafranski in a manner consistent with this order, the Public Records Law, and its Regulations as sson as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Stuart Ivimey SPR20/1033 Page 4 July 14, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Szafranski