Maria Kopicki v. Amherst Town Manager (SPR 20201512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1512 Paul Bockelman Town Manager Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Mr. Bockelman: I have received the petition of Maria Kopicki appealing the response of the Town of Amherst (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kopicki requested “the names of individuals who had applied to serve on a committee (the Elementary School Building Committee).” The Town responded to Ms. Kopicki on August 15, 2020, indicating that it is withholding the Community Activity Forms containing the requested information pursuant to the personnel and privacy clauses of Exemption (c). Unsatisfied with the Town’s response, Ms. Kopicki petitioned this office and this appeal, SPR20/1512, 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

Paul Bockelman SPR20/1512 Page 2 September 14, 2020 Current Appeal In its August 15, 2020 response, the Town claims the personnel and privacy clauses of Exemption (c) of the Public Records Law to withhold responsive records from disclosure. The Town provided a supplemental response on September 8, 2020, providing further explanation regarding its Exemption (c) claims. 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). Second clause of Exemption (c) – 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 Property 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 (PETA) v. Dep’t of Agric. Res., 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, 427 (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 291. 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.

Paul Bockelman SPR20/1512 Page 3 September 14, 2020 In its September 8th response, the Town states that “applicants for employment with a town committee have a protected privacy interest in their applications during the early stages of the hiring process that outweighs the public’s ‘right to know’ who has applied.” The Town cites two cases, Gerstein v. Superintendent Search Screening Committee and Attorney General v. School Committee of Northampton, recognizing the privacy interest held by applicants for public employment. Applications pertaining to candidates not appointed A general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to the second clause of Exemption (c). Northampton, 375 Mass. at 132 n.5. Based on the Town’s response, I find the Town has met its burden to show that the candidates that were not hired or appointed have a privacy interest in this matter. Therefore, I find the Town may withhold the names of applicants who were not appointed to the committee. Conclusion Accordingly, whereas I find the Town may permissibly withhold the responsive names pursuant to the privacy clause of Exemption (c), I will consider this administrative appeal closed. If Ms. Kopicki 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: Maria Kopicki Lauren F. Goldberg, Esq.