Christopher Allender v. Amesbury, City of - City Clerk (SPR 20241056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2024 SPR24/1056 Jennifer Smith City Clerk City of Amesbury 62 Friend Street Amesbury, MA 01913 Dear Ms. Smith: I have received the petition of Chris Allender appealing the response of the City of Amesbury (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 12, 2024, Mr. Allender requested the following: [1.] 2023 Deputy promotional interview questions [2.] 2023 Deputy promotional interview score sheets redacted & scores The City responded on April 8, 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemptions (b), (c), and (l) of the Public Records Law. See G. L. c. 4, § 7(26)(b), (c), (l). Unsatisfied with the City’s response, Mr. Allender 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. Attorney 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 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

Jennifer Smith SPR24/1056 Page 2 April 24, 2024 or redacted portion of the responsive record. 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 April 8th Response In its April 8, 2024 response, the City states “that the City shall withhold the records responsive to [the] first request pursuant to Exemptions (b) and (l) to the Public Records Law, and shall withhold the records responsive to [the] second request pursuant to Exemption (c) of the Public Records Law.” Part 1 In its April 8th response, the City states that it “shall withhold the records responsive to [the] first request pursuant to Exemptions (b) and (l) to the Public Records Law.” Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity

Jennifer Smith SPR24/1056 Page 3 April 24, 2024 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the City argues the following: Here, [Mr. Allender has] requested promotional interview questions for the “Deputy” promotion, presumably referring to Deputy Fire Chief. Interview questions are intrinsically related to internal personnel practices. The City has concluded that its ability to effectively conduct future interviews would be inhibited by the public disclosure of the interview questions in this matter. Accordingly, the requested records are being withheld pursuant to Exemption (b) to the Public Records Law. Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). Under Exemption (l), the City argues “that the interview questions requested are exempt from disclosure under Exemption (l). An interview is a key assessment component of any hiring process, and the City is therefore withholding the requested interview questions on the grounds that they may be used to conduct and administer additional interviews in the future.” Based on the City’s April 8th response, where the interview questions are used to conduct an assessment, and the City has explained that it may use the questions in future assessments, I find that the City has met its burden to withhold the interview questions pursuant to Exemption (l) of the Public Records Law. Where the City may withhold the interview questions pursuant to Exemption (l), I decline to address the applicability of Exemption (b) to the interview questions. Part 2 In its April 8th response, the City states that it “shall withhold the records responsive to [the] second request pursuant to Exemption (c) of the Public Records Law.”

Jennifer Smith SPR24/1056 Page 4 April 24, 2024 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). 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. 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: Here, in [the] second request, [Mr. Allender is] specifically seeking interview scoring sheets, which are precisely the type of personnel information that Courts have previously determined as “absolutely exempt” from public disclosure. It is the City’s position that the scoring information requested may be appropriately

Jennifer Smith SPR24/1056 Page 5 April 24, 2024 withheld pursuant to Exemption (c). In reaching this conclusion, the City has carefully considered the application of Exemption (c) to the requested test scores to determine whether disclosure of the information that has been withheld is such that the public’s right to know outweighs any individual’s privacy rights, and considered the factors set forth in the PETA case, cited above. Following a careful and diligent review of the interview score sheets requested, which contain individual candidates’ names, interview scores, and interviewer notes, the records cannot be provided without implicating the privacy rights of the individual employment candidates. The employment candidates have a privacy interest in their interview scores and performance, pursuant to Exemption (c) of the Public Records Law. 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. Allender with a response to the 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: Chris Allender