Christopher Allender v. Amesbury, City of - City Clerk (SPR 20241438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2024 SPR24/1438 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 Previous Appeal This request was the subject of a previous appeal. See SPR24/1056 Determination of the Supervisor of Records (April 24, 2024). In my April 24th determination, I found that the City had met its burden to withhold records responsive to Part 1 of the request under Exemption (l) of the Public Records Law, and ordered the City to clarify its claims under Exemption (c) for withholding records responsive to Part 2 of the request. See G. L. c. 4, § 7(26)(c), (l). Subsequently, the City responded on May 8, 2024, reiterating its claims under Exemption (c) for withholding records responsive to Part 2. Unsatisfied with the City’s response, Mr. Allender 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

Jennifer Smith SPR24/1438 Page 2 May 24, 2024 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 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. Current Appeal In his appeal petition, Mr. Allender states that he is “simply looking for the score sheets which have had all names removed, commentary removed, and [he does] not want any personal identifiable information. [He is] simply looking for the score sheets with question numbers and the score to said question.” The City’s May 8th Response In its May 8, 2024 response, the City cites Exemption (c) for withholding records responsive to Part 2 of the request. 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). 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).

Jennifer Smith SPR24/1438 Page 3 May 24, 2024 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 May 8th response, under Exemption (c), the City argues the following: Here, the interview score sheets sought include comments about each candidate, including comments on the strengths and weaknesses of each candidate. Operating with the belief that the identities of the candidates are known, at least amongst the ranks of the Amesbury Fire Department, disclosure of such comments could lead to innuendo and speculation as to the subject’s reputation and/or professional competence. Accordingly, the candidates have privacy interests in such comments, such that the nature of such comments may be considered intimate details highly personal in nature. Following a careful and diligent review of the interview score sheets requested, including the comments of the interview panel about each candidate, the records cannot be provided without implicating the privacy rights of the individual employment candidates. Redaction of the candidates’ identifying information would not suffice to protect their privacy interests, in this case, as the City submits that the identities of the candidates are known, and each would be subjected to speculation about the applicability of certain interviewer comments as they pertain to the professional reputation and/or competence of the candidates. The employment candidates have a privacy interest in their interview scores and performance, pursuant to Exemption (c) of the Public Records Law. In light of Mr. Allender’s most recent appeal petition, where he has narrowed his request to “the score sheets with question numbers and the score to said question” with the “commentary removed,” it remains unclear whether the City can redact the comments of the interview panel, along with other identifying information, and provide the remaining score information in order to shed light on the application process, while also protecting the privacy

Jennifer Smith SPR24/1438 Page 4 May 24, 2024 interests of the applicants. 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). The City must clarify this. 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