Laura Kraegel v. Division of Occupational Licensure (SPR 20221279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 14, 2022 SPR22/1279 Araceli Avila Ging Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. Ging: I have received the petition of Laura Kraegel, of WBUR, appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 26, 2022, Ms. Kraegel requested “copies of the resume and application of [a named individual at] the Board of Registration of Home Inspectors.” On May 27, 2022, the Division responded. Unsatisfied with the Division’s response, Ms. Kraegel petitioned this office and this appeal, SPR22/1279, 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 agency or municipality 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. Att’y 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. 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

Araceli Avila Ging SPR22/1279 Page 2 June 14, 2022 The Division’s May 27th Response In its May 27, 2022 response, the Division cited Exemption (c) of the Public Records Law to withhold the resume and application of the named individual. 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 and application, the Division states:

Araceli Avila Ging SPR22/1279 Page 3 June 14, 2022 The requested documents are exempted by G.L. c. 4, § 7(26)(c) as “personnel and medical files or information.” Employee resumes are particularly exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c) as they are submitted as part of job applications, which are unambiguously personnel records within the meaning of the statute. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000). [The named individual’s] resume and application were submitted as part of his application for employment and are part of his personnel file. Therefore, both the resume and application are exempt from disclosure. Based on the Division’s response, it is unclear how a resume and job application in their entirety constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. 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. See PETA, 477 Mass. at 292. As a result, I find that the Division did not satisfy its burden in withholding these records in their entirety pursuant to Exemption (c). Conclusion Accordingly, the Division is ordered to provide Ms. Kraegel with a response to her 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 the response to this office at pre@sec.state.ma.us. Ms. Kraegel may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ,,, , .· . . . - ' ~ - . Rebecca S. Murray Supervisor of Records cc: Laura Kraegel, WBUR