Andrew Quemere v. Boston, City of - Public Records (SPR 20230545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2023 SPR23/0545 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Andrew Quemere appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 23, 2022, Mr. Quemere requested, “all applications, resumes, cover letters, and other records submitted by individuals applying to be the next Boston police commissioner [and a]ll data sets and lists of individuals who have applied to be the next Boston police commissioner.” Previous Appeals This request was the subject of previous appeals. See SPR22/1388 Determination of the Supervisor of Records (June 27, 2022) and SPR22/1737 Determinations of the Supervisor of Records (August 11, 2022, December 6, 2022). In my December 6th letter, I ordered the City to provide Mr. Quemere with a response to his request. Subsequently, the City responded on March 21, 2023. Unsatisfied with the City’s response, Mr. Quemere appealed, and this case 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

Shawn A. Williams, Esq. SPR23/0545 Page 2 April 5, 2023 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. The City’s July 22nd and March 23rd Responses In its March 23, 2023 response, as in its July 22, 2022 response, the City cites Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c). 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). 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. This exemption does not protect all data relating to specifically named individuals. Rather, 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). 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 previous July 22, 2022 response, the City argues that “resumes are ‘absolutely exempt’ from disclosure.” The City goes on to state that the “request for ‘data sets and lists of individuals’ is also denied as any such records shall be withheld under exemption (c) of the public records law. Any such information would not exist but for the cover letters and resumes submitted by the applicants. Therefore, any such list consists solely of information useful in making employment decisions.”

Shawn A. Williams, Esq. SPR23/0545 Page 3 April 5, 2023 In its March 23rd response, the City states that it “provided a redacted copy of the resume for [the current commissioner] and denied the remainder of [Mr. Quemere’s] request.” The City also states that “the records ... are not available from another source and disclosure would have a chilling effect on the hiring process.” The City further argues the following: There is at least one federal case that analyzes the language [of Exemption (c)] as it now exists in this state. In that case, the United States District Court found resumes and job applications are entirely exempt from disclosure. Barvick v. Cisneros, 941 F.Supp. 1015 (1996); referencing the federal freedom of information act 5 USCA § 552 (6). Records Pertaining to Candidates Not Hired Based on the City’s response, I find the City has not met its burden to show that the candidates who were not appointed have a privacy interest in these matters. A general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to Exemption (c). See Att’y Gen. v. Sch. Comm. of Northampton, 375 Mass. 127, 132 n.5 (1978). However, as described above, the balancing test for Exemption (c) 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 at 291. In this case, it is unclear whether the City is withholding the records of individuals who advanced past the initial application stage. Additionally, 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. Further, the public has an interest in transparency in the process of hiring, managing and compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 28 Mass. L. Rep. 499 (2011). As such, it is unclear why the City cannot redact identifying information from the responsive records and provide the remaining information in order to shed light on the applicant pool and application process while also protecting privacy interests. 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. Conclusion Accordingly, the City is ordered to provide Mr. Quemere with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Shawn A. Williams, Esq. SPR23/0545 Page 4 April 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere