Jenna Fisher v. Brookline Town Clerk (SPR 20210785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 9, 2021 SPR21/0785 Christopher Tisbert Town of Brookline 333 Washington Street Brookline, MA 02445 Dear Mr. Tisbert: I have received the petition of Jenna Fisher of Brookline Patch appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2021, Ms. Fisher requested, “… the dates [named person] was employed with the town and a copy of the resume … supplied and any letters of recommendation associated with her hiring.” The Town responded on March 16, 2021. Unsatisfied with the response, Ms. Fisher appealed and SPR21/0785 was opened as 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). The Town’s March 16th response In its March 16, 2021 response, the Town provided the dates of employment and cited Exemption (c) of the Public Records Law to withhold the resume. 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

Christopher Tisbert SPR21/0785 Page 2 April 9, 2021 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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). This exemption 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. In its response, the Town states, “… [the] resume is withheld from disclosure under exemption (c) of the Public Records law, which exempts personnel record information from public disclosure. See, Wakefield Teacher’s Ass’n v. School Comm. Of Wakefield, 431 Mass. 792, 798 (2000).” The Attorney General’s Office (AGO) has concluded, “… a resume submitted as part of an employment application falls within a core category of personnel information useful in

Christopher Tisbert SPR21/0785 Page 3 April 9, 2021 making employment decisions, and is therefore absolutely exempt from disclosure under … Exemption (c).” See AGO letter dated May 7, 2020 regarding SPR19/2399 (Determination of the Supervisor of Records (December 10, 2019). Conclusion Accordingly, I will now consider this administrative appeal closed. Please note, Superior Court has concurrent jurisdiction. G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jenna Fisher Joslin Murphy, Esq.