Laura Crimaldi v. Human Resources Division (SPR 20211210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2021 SPR21/1210 Michele Heffernan, Esq. General Counsel Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Human Resources Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2021, Ms. Crimaldi requested records relating to the eligibility list for the Stoughton Police Department on 9/1/2019. The Division responded on May 4, 2021. Unsatisfied with the Division's response, Ms. Crimaldi appealed and SPR21/1210 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Michele Heffernan, Esq. SPR21/1210 Page 2 May 25, 2021 The Division’s May 4th response In its May 4th response, the Division cited Exemption (c) of the Public Records Law to withhold the requested records. 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). 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. 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. 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). When analyzing a privacy claim, there is 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 May 4th response, the Division informed Ms. Crimaldi it is “withholding the applications for the aforementioned individual from disclosure pursuant to the personnel exemption to the public records law, G.L. c. 4, § 7, cl. 26(c). Applications are exempt from

Michele Heffernan, Esq. SPR21/1210 Page 3 May 25, 2021 disclosure pursuant to the first clause of exemption (c), as they are personnel records submitted to the Commonwealth. Job applications are unambiguously ‘personnel’ records within the meaning of exemption (c). Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000) (‘personnel [file] or information includes, at a minimum, employment applications . . .’). Personnel information is absolutely exempt from disclosure. Id. at 799-800. …” The Division further explained, “[w]e can provide the eligible list on which [the identified person’s] name appears. We were unable to identify any other state or municipal agency that may have possession, custody or control of the requested records.” Based on the Division’s response, it is unclear how the applications are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Division did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the Division did not satisfy its burden in withholding these records pursuant to Exemption (c). Order Accordingly, the Division is ordered to provide Ms. Crimaldi with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, ~ ,- -•'' . ' . · -' . . Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi