Patrick Higgins v. Fall River, City of - Office of the Corporation Counsel (SPR 20212105)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2105 Seth T. Aitken, Esq. Assistant Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Aitken: I have received the petition of Patrick Higgins appealing the response of the City of Fall River Office of the Corporation Counsel (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Higgins requested the resume of an identified candidate for a City position. On August 19, 2021, the City denied the request under Exemption (c) as personnel information. Unsatisfied with the City’s response, Mr. Higgins petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Higgins asserts, “[t]he past practice of the Fall River City Council was to include resumes for all candidates to be considered for appointment by the City Council. I have hundreds of [C]ity [C]ouncil agenda packets which contained the resumes in the past.” 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) (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 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

Seth T. Aitken, Esq. SPR21/2105 Page 2 September 1, 2021 burden of establishing the applicability of an exemption). 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 citing Exemption (c) to withhold the resume, the City states, “… [the] record you are seeking is not a public record as it would have been submitted to the City as part of [the identified person’s] application for employment. Accordingly, such record exists in the City’s custody only as a part of [the identified person’s] personnel file.”

Seth T. Aitken, Esq. SPR21/2105 Page 3 September 1, 2021 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 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: Patrick Higgins