Amy Friedman v. Malden City Clerk's Office (SPR 20202492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2020 SPR20/2492 Greg Lucey City Clerk City of Malden 110 Pleasant Street, First Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Bruce Friedman appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 24, 2020, Mr. Friedman requested “. . . the entire contents of [an identified individual’s] public employee file including but not limited to his letter of resignation.” Previous appeal The requested records were the subject of previous appeals. See SPR20/1629 Determination of the Supervisor of Records (September 22, 2020) and SPR20/1797 Determination of the Supervisor of Records (October 8, 2020). In my October 8th determination, I found the City had not met its burden to withhold responsive records in their entirety under Exemption (c) of the Public Records Law. Accordingly, I ordered the City to provide Mr. Friedman with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the City provided a response on November 19, 2020. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and this appeal, SPR20/2492, 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). 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

Greg Lucey SPR20/2492 Page 2 December 30, 2020 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 November 19th response In its November 19, 2020 response, the City indicates that the identified individual’s personnel file “. . . contains [] his contract, resume, application packet, and onboarding forms such as school personnel form, W4 form, and direct deposit.” The City, however, enclosed a copy of the individual’s contract. Citing the Wakefield decision, the City asserts that “[a]ll of the records contained in his personnel file, except for his contract – his application, resume and the onboarding forms - are the documents that are critical in making employment decisions as they were necessary for his hire. As such, these records are not subject to redaction, as ‘core categories of personnel information’ and may be withheld in their entirety. . . .” 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

Greg Lucey SPR20/2492 Page 3 December 30, 2020 (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). Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee’s employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Wakefield, the Court found that at a minimum, personnel information includes, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield, 431 Mass. at 798. The Court concluded that these pieces of information “constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c).” Id. at 798-99. Please be advised that in a recent decision from the Attorney General’s Office (AGO), 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). However, I find it is unclear how the W4 form and direct deposit form constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. Particularly, the City has not differentiated how these records are not payroll records. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Friedman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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.

Greg Lucey SPR20/2492 Page 4 December 30, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman