Laura Kraegel v. Division of Occupational Licensure (SPR 20221676)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2022 SPR22/1676 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.” Previous Appeals This request was the subject of previous appeals. See SPR22/1279 Determination of the Supervisor of Records (June 14, 2022) and SPR22/1443 Determination of the Supervisor of Records (July 7, 2022). In the Supervisor’s July 7th determination, the Supervisor ordered the Division to provide Ms. Kraegel with a response to her request. On July 19, 2022, the Division responded. Unsatisfied with the Division’s response, Ms. Kraegel petitioned this office and this appeal, SPR22/1676, 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. 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 SPR22/1676 Page 2 August 2, 2022 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. The Division’s July 19th Response In its July 19, 2022 response, the Division cites Exemptions (c) and (o) to withhold the responsive 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). 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

Araceli Avila Ging SPR22/1676 Page 3 August 2, 2022 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. Citing Wakefield, the Division asserts that “records in the first category, ‘personnel and medical files or information,’ are absolutely exempt from disclosure.” (Emphasis in original). In addressing the factors listed in PETA, the Division contends: [T]he public interest of disclosure does not outweigh the seriousness of the invasion of [a named individual’s] private interests. The resume and job application include details that are highly personal in nature, evidenced by the fact that they are not even accessible to all personnel within the Division. Moreover, applicants are not informed that their biographical information could be made public. Individuals of “normal sensibilities” do not want their age, gender, home address, phone number, email, race, education, language fluency, work authorization status, vaccination status, and references published without their consent. Further, those serving as personal references to applicants may not be aware that their personal details are being held by the Division or could be disclosed as an endorsement of an applicant. This personal snapshot of intimate details could be posted anywhere and used freely by anyone. Job applicants for positions in public office should not be subject to this invasion of privacy and have their personal information disclosed without their authorization. Additionally, [a named individual’s] LinkedIn profile, easily accessible via a search online, provides his employment history and educational background thus providing an alternative source for the information sought. Further, disclosure of this type of information sheds no light on whether [a named individual] is carrying out his duties in a law-abiding and efficient manner. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in

Araceli Avila Ging SPR22/1676 Page 4 August 2, 2022 section 167 of chapter 6. G. L. c. 4, § 7(26)(o). The Division asserts that “portions of the records are also subject to exemptions under [Exemption (o)], including, for example, all home addresses, personal email addresses, and home telephone numbers.” Current Appeal In her appeal, Ms. Kraegel asserts: I have no objection whatsoever to the redaction of highly personal details pertaining to [a named individual] or [the] references. I’m seeking the portions of these records containing information on [the] employment history and educational background. The Division …acknowledged…that much of this information is accessible through [the individual’s] public LinkedIn profile, which undercuts the argument that releasing the information would be a serious violation of personal privacy. There is substantial public interest in the professional and educational credentials of public employees hired by the state to work on behalf of the public[.] Based on the Division’s response, I find the Division has not met its burden to withhold the responsive records in their entirety under Exemptions (c) and (o). Particularly, while portions of the records may fall within an exemption, it is uncertain how the responsive records, 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. Further, where portions of the responsive records may be available from other sources, it is unclear how the records can be withheld. Additionally, upon review of the balancing test, it is unclear how a privacy interest of a government official conducting public business outweighs the public interest in this situation. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). 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.

Araceli Avila Ging SPR22/1676 Page 5 August 2, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Laura Kraegel, WBUR