Beth Healy v. Division of Occupational Licensure (SPR 20230259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2023 SPR23/0259 Jessica L. Ellis, Esq. Assistant General Counsel Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: I have received the petition of Beth Healy, of WBUR, appealing the responses 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 January 19, 2023, Ms. Healy requested “the resumes of 13 current and former employees and/or board officials of the Dept. of Occupational Licensure…” On February 2, 2023, the Division responded. Unsatisfied with the Division’s response, Ms. Healy petitioned this office and this appeal, SPR23/0259, was opened as a result. The Division provided a supplemental response on February 9, 2023. 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. 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

Jessica L. Ellis, Esq. SPR23/0259 Page 2 February 24, 2023 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 February 2nd and February 9th Responses In its February 2, 2023 response, the Division states, “[p]ursuant to G.L. c. 66, § 10(b)(vi), the DOL anticipates that a final response including any available, responsive records subject to disclosure, or portions thereof, will be provided on or before February 9, 2023.” In its February 9, 2023 response, the Division asserts: The requested documents are exempted by [Exemption (c)] as “personnel and medical files or information.” Employee resumes are particularly exempt from disclosure pursuant to [Exemption (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). Each employee, or former employee’s, resume and application were submitted as part of their application for employment and are part of their personnel file. They serve as the record that initiates the hiring process and include traditional employment application information such as age, gender, home address, phone number, email, race, education, language fluency, work authorization status, vaccination status, and references. Therefore, both the resume and application for each employee are exempt from disclosure. As you know from our response to your earlier request for the resume of [an identified individual], our interpretation of the statute is that “personnel and medical files or information” are absolutely exempt from disclosure. Our rationale explaining that position is set forth in our response to your colleague’s appeal in that matter (See SPR22/1985). The Division also cites Exemption (o) of the Public Records Law to withhold portions of the responsive records. G. L. c. 4, § 7(26)(o). 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).

Jessica L. Ellis, Esq. SPR23/0259 Page 3 February 24, 2023 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. Sch. 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 Fin., 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. 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 section 167 of chapter 6. G. L. c. 4, § 7(26)(o).

Jessica L. Ellis, Esq. SPR23/0259 Page 4 February 24, 2023 In its February 9th response, 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.” Based on the Division’s February 9th response, it is unclear how the 13 resumes can be withheld, in their entirety, under Exemptions (c) and (o). In particular, regarding Exemption (c), it is unclear how a resume contains intimate details of a highly personal nature or 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. It is unclear how any privacy interest in the records described above outweighs the significant public interest in knowing whether an official is qualified for their job, and in knowing whether the hiring entity is carrying out its duties in an efficient and law-abiding manner. 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. Healy 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. Sincerely, Manza Arthur Supervisor of Records cc: Beth Healy