Malden News Network v. Malden, City of (SPR 20231685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2023 SPR23/1685 Greg Lucey Records Access Officer Clerk Department City of Malden 215 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Malden News Network appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2023, Malden News Network requested twelve categories of records relating to a “job announcement ... for a Constituent Services / Social Media specialist,” including: 6. All related communications for this June 22nd job announcement (e.g. resumes, applications, emails, text etc.). Previous Appeal This request was the subject of a previous appeal. See SPR23/1546 Determination of the Supervisor of Records (July 20, 2023). In my July 20th determination, I ordered the City to identify the records it intends to withhold, and explain the applicability of any exemptions of the Public Records Law. Subsequently, the City responded on July 20, 2023, citing Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. § 7(26)(c). Unsatisfied with the City’s response, Malden News Network 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 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

Greg Lucey SPR23/1685 Page 2 August 4, 2023 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. The City’s July 20th Response In its July 20, 2023 response, the City cites Exemption (c) of the Public Records Law for withholding “emails with job applicants attaching their resumes and cover letters.” 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.

Greg Lucey SPR23/1685 Page 3 August 4, 2023 In its July 20th response, the City argues the following under Exemption (c): The records withheld consists of emails with job applicants attaching their resumes and cover letters. These are exempt from disclosure under the public records law because they constitute personnel files and information. M.G.L. c. 4, § 7 twenty-sixth (c). The city maintains personnel files of current employees, past employees, and prospective employees. The courts have determined that employment applications of individuals constitute personnel files or information, and are therefore categorically exempt from disclosure under the public records law. Based on the City’s response, it is unclear how the records, in their entirety, constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City has not provided 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. PETA, 477 Mass. at 292. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Malden News Network with a response to the 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: Malden News network Zaheer A. Samee, Esq.