Andrew Quemere v. Boston, City of - Public Records (SPR 20231397)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1397 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. See 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); SPR22/1737 Determinations of the Supervisor of Records (August 11, 2022, December 6, 2022) and SPR23/0545 Determination of the Supervisor of Records (April 5, 2023). In my April 5th determination, I ordered the City to clarify its claims under Exemption (c) for withholding responsive records. Subsequently, the City responded on May 19, 2023. Unsatisfied with the City’s response, Mr. Quemere further 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). 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. SPR23/1397 Page 2 July 6, 2023 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. The City’s May 19th Response In its May 19, 2023 response, as in its previous March 23, 2023 and July 22, 2022 responses, the City again 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. Under Exemption (c), the City argues the following:

Shawn A. Williams, Esq. SPR23/1397 Page 3 July 6, 2023 Unfortunately, no Massachusetts case law on point analyzes the amended language of the privacy exemption. There are, however, cases in other jurisdictions that analyze the language as it now exists. In one such case, the United States District Court found that 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). Federal law permits the withholding of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;” 5 USCA § 552 (6). The Massachusetts law permits the withholding of “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;” G. L. c. 4, § 7(26)(c). These two sections are nearly identical. Based upon both [the City’s] July 22, 2022 letter and the holding in Barvick, [Mr. Quemere’s] request is denied. Records Pertaining to Candidates Not Hired Based on the City’s May 19th 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. As noted in my April 5th determination, 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, as also noted in my April 5th determination, 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.

Shawn A. Williams, Esq. SPR23/1397 Page 4 July 6, 2023 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere