Gayla Cawley v. Boston Water & Sewer Commission (SPR 20250913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2025 SPR25/0913 Dolores Randolph Records Access Officer Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Gayla Cawley, of the Boston Herald, appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2025, Ms. Cawley requested “a copy of the resume submitted by [a named individual], chief human resource officer, that led to her hire as human resources director of the Boston Water and Sewer Commission.” The Commission responded on March 27, 2025. On the same day, Ms. Cawley modified the scope of her request, seeking “[the named individual]’s job experience and education prior to starting employment with the Boston Water and Sewer Commission if you don’t want to provide the actual resume.” Unsatisfied with the Commission’s response, Ms. Cawley petitioned this office, and this appeal, SPR25/0913, 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 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

Dolores Randolph SPR25/0913 Page 2 April 16, 2025 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 her appeal petition, Ms. Cawley contends the following: The Commission has cited a privacy or personnel exemption for that request, and has not responded to a follow-up request for a partial records response, for the education and experience listed on [the individual]’s resume with personal contact information redacted. The Commission seeks to contend that such basic information would constitute an “unwarranted invasion of privacy” without grounds, by conflating public information about a public employee’s relevant job experience and education with personnel files relating to disciplinary documentation and employee evaluations, which would not be covered in a pre-employment resume. The requested information is pertinent to inform the public about whether the City of Boston’s highest-paid human resources director had the relevant job qualifications when hired, as listed in a job listing for the position that was previously provided by the Commission. The Commission’s March 27th Response In its March 27, 2025 response, the Commission 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from

Dolores Randolph SPR25/0913 Page 3 April 16, 2025 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. In its March 27th response, under Exemption (c), the Commission argues the following: The Commission is withholding the records you have requested pursuant to M.G.L. ch. 4, § 7, cl. 26(c), which permits the non-disclosure of “personnel . . . 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.” At a minimum, “personnel information” includes employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee” which constitutes “the core categories of personnel information that are ‘useful in making employment decisions regarding an employee.’” Wakefield Teachers Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 797-98 (2020) (citation omitted). The records you requested are used to make hiring decisions related to employees and therefore they are exempt as personnel records. Where the requested resume was used to make a hiring decision, I find that the record falls within the core categories of personnel information described in Wakefield as useful in making employment decisions regarding an employee, and is exempt under Exemption (c). See Wakefield, 431 Mass. at 798. In Colman M. Herman v. City of Boston, et. al., Suffolk Superior Court, Civil

Dolores Randolph SPR25/0913 Page 4 April 16, 2025 Action No. 2384CV2395, the Court in its June 20, 2024 Decision and Order on Plaintiff’s Motion to Compel Public Records Responses, found that “personnel files . . . shall be considered exempt under exemption (c) . . .” Id. at 6. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Commission’s response, and the information provided in Ms. Cawley’s appeal petition, it is unclear whether the Commission possesses additional records responsive to Ms. Crawley’s modified March 27th request. If the Commission does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Commission is ordered to provide Ms. Cawley with a response to the modified March 27th 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. Ms. Cawley may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Gayla Cawley