John Hilliard v. Newton, City of - City Clerk (SPR 20201636)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2020 SPR20/1636 David Olson City of Newton 1000 Commonwealth Avenue City Hall, First Floor Newton, MA 02459 Dear Mr. Olson: I have received the petition of John Hilliard of the Boston Globe appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2020, Mr. Hilliard requested: Would the city provide information on the applicants who contacted Mayor Fuller about serving on the task force? In her June 15 speech, she requested applicants send her their resumes and the reason for their interest in serving by Monday, June 22. There is a public interest in knowing who has applied for the police task force, and who will be appointed to this board . . . Previous appeal The requested records were the subject of a previous appeal. See SPR20/1132 Determination of the Supervisor of Records (July 22, 2020). In my July 22nd determination, I ordered the City to provide Mr. Hilliard with a response in accordance with the order, the Public Records Law and its Access Regulations. Subsequently, the City provided a response on September 4, 2020, which provides additional information regarding its Exemption (c) claim. Unsatisfied with the City’s response, Mr. Hilliard petitioned this office and this appeal, SPR20/1636, 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 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

David Olson SPR20/1636 Page 2 September 24, 2020 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 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 City’s September 4th response In its September 4, 2020 response, the City reiterates that the resumes and statements of interest submitted by applicants to serve on a task force are exempt under Exemption (c). 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).

David Olson SPR20/1636 Page 3 September 24, 2020 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). Under the first clause of Exemption (c), the City explains that “[t]hese documents were not only ‘useful’ but were the primary documents upon which the Mayor made her decision to select individuals for appointment to the task force. In this regard they are personnel in nature and may be withheld. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003) (‘core categories of personnel information that are ‘useful in making employment decisions regarding an employee’’ may be withheld from disclosure).” 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.

David Olson SPR20/1636 Page 4 September 24, 2020 Under the second clause of Exemption (c), the City asserts that “. . . these documents are personal in nature and must be withheld to protect the privacy of the individuals regardless of whether they are paid employees or unpaid volunteers.” The City explains that “[o]n June 15, 2020, Newtons’ Mayor Fuller announced the creation of the task force and asked those interested in being appointed to submit to her a resume and ‘the reason for your interest’. Those communications expressing personal reasons for wanting to serve on the task force – some including intimate details of a highly personal nature - are absolutely personal in nature. The disclosure of these documents would most certainly constitute an invasion of privacy. Moreover, applicants to any position in government should have an expectation of privacy in their personal thoughts and sentiments when applying for a job. Release of such information could result in personal embarrassment to an individual of normal sensibilities.” The City posits that “[s]pecifically with respect to those applicants who were not appointed to the task force, their resumes should absolutely be protected from disclosure under Exemption (c). To release such information would constitute further invasion of privacy in revealing that these individuals not only applied to be appointed to the task force but were not selected. The public interest in learning who wanted to be on the task force cannot outweigh the privacy interests of those who expressed their personal reasons for wanting to be part of the task force but were not selected. To be sure, even greater harm would be result to the public if Exemption (c) did not apply here because it would have a chilling effect on citizen participation in local government.” Additionally, the City indicates that in its opinion “. . . the privacy rights of individuals who wish to volunteer their services to the City should be treated the same as individuals who ultimately work for pay and, therefore, Exemption (c) must apply. This is consistent with Massachusetts law that treats volunteers in the same fashion as employees as evidenced by General Laws, chapter 258, generally known as the ‘Massachusetts Tort Claims Act’. For purposes of municipal tort liability under this Act, a public employee is any ‘elected or appointed, officers or employees of any public employer, whether serving full or part-time, temporary or permanent, compensated or uncompensated. . . .’ G.L. c. 258, §1. Therefore, we maintain that an individual’s application to perform work for the City for free should not exempt them from the privacy protections provided to others who are paid to work for the City.” Where members of the task force were appointed to perform work on behalf of the City, they are employees of the City for the purpose of the application of Exemption (c). Therefore, the resumes submitted for this volunteer position constitute employment applications. See Maciorowski v. Schwarzenbach, 2010 Mass. App. Div. 257, 259 (Dist. Ct. 2010) (defining a “public employee” to include “. . . elected or appointed officers or employees of any public employer, whether serving full or part time, temporary or permanent, compensated or uncompensated . . .” and stating that “[l]aw students who work as volunteers in the office of the counsel to the Governor, volunteer workers in the state hospitals, and volunteer drivers for the Governor may be public employees for the purposes of G. L. c. 258, § 1.”). Please be advised that in a recent decision from the Attorney General’s Office (AGO)

David Olson SPR20/1636 Page 5 September 24, 2020 regarding a similar matter, the AGO found that “. . . a resume submitted as part of an employment application falls within a core category of personnel information useful in making employment decisions, and is therefore absolutely exempt from disclosure under the first clause of Exemption (c).” See AGO’s May 7, 2020 letter regarding SPR19/2399 Determination of the Supervisor of Records (December 10, 2019). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Hilliard 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: John Hilliard