Evelyn Tobin v. Methuen, City of - City Clerk (SPR 20230296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2023 SPR23/0296 Anne Drouin City Clerk City of Methuen Searles Building, Room 112 41 Pleasant Street Methuen, MA 01844 Dear Ms. Drouin: I have received the petition of Evelyn Tobin appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 18, 2023, Ms. Tobin requested the following records, “[r]esume, professional qualifications [for the job], and job application for [an identified City employee].” Prior Appeal This request was the subject of a prior appeal. See SPR23/0220 Determination of the Supervisor of Records (February 13, 2023). SPR23/0220 was closed after the City provided a supplemental response on February 11, 2023. Unsatisfied with the City’s response, Ms. Tobin petitioned this office and this appeal, SPR22/0296, 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) (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 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

Anne Drouin SPR23/0296 Page 2 March 1, 2023 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). 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 City’s February 11th Response In its February 11, 2023 response, the City claimed Exemption (c) of the Public Records Law to withhold the requested records from disclosure. 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. Sch. 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. 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).

Anne Drouin SPR23/0296 Page 3 March 1, 2023 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 February 11th response, under Exemption (c), the City argues the following: [a]s a threshold matter, upon receipt of the request, the City construed the request for job qualifications to correlate to a request for a resume and/or job application because the City is not compelled to create documents in reply to a request for public records, and the resume and job application identify credentials. Thus, Ms. Tobin’s request for job qualifications is duplicative of her request for a resume and job application, which, accordingly, boils the subject request down to a resume and job application. With that said, the City correctly invoked the personnel records portion of Exemption (c) to withhold the subject documentation because the requested materials, regarding a City employee who is not subject to City Council approval, are constituent materials with a personal record and thus protected from public disclosure under Wakefield Teachers Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000) [Wakefield]. . . . In this case, Ms. Tobin seeks the very types of documents that [Wakefield] held are not subject to public disclosure. Indeed, her request for a job application expressly mirrors [Wakefield’s] definition of non-disclosable personnel records. See Id. Further, [Ms. Tobin’s] request for a resume constitutes the functional equivalent of a request for a job application given the well-settled ad recognized overlap between the information contained in a candidate’s resume and in a candidate’s job application. Thus, Ms. Tobin’s request for the individual’s resume warranted denial, consistent with [Wakefield]. Based on the City’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 City 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. It is additionally uncertain how the records cannot be redacted and non-exempt portions provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters.

Anne Drouin SPR23/0296 Page 4 March 1, 2023 As a result, I find that the City did not meet its burden of specificity to withhold the responsive records, in their entirety, under Exemption (c) of the Public Records Law. Conclusion Accordingly, the City is ordered to provide Ms. Tobin with a response to her request 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: Evelyn Tobin