May 6, 2013

Division of Open Government

Office of the Attorney General

One Ashburton Place

Boston, MA 02108-1518

Re: Complaint of Open Meeting Law Violation

Complainant: Kathleen McKiernan, The Recorder, 14 Hope Street, Greenfield, MA 01302-1367

(413) 772-0261 ext 268

Defendant: Conway Board of Selectmen

Received: April 22, 2013

Dear Sir / Madam:

The Board of Selectmen of the Town of Conway received a complaint alleging an Open Meeting Law

Violation from the above referenced complainant on April 22, 2013.

The response to this allegation is enclosed.

Respectfully submitted,

John P. O'Rourke

Chairman, Board of Selectmen

Town of Conway

JOR/

BY CERTIFIED MAIL RETURN RECEIPT REQUESTED

INTRODUCTION

There are two principles at conflict here. One is the individual's right to privacy. The other is the

public's right to know. Judicial court decisions have generally attempted to provide a balance between

these two principles, neither of which is crystal clear, as evidenced by the wide range of decisions

concerning both.

The Board of Selectmen for the Town of Conway has also attempted to find a way to comply with the

public's right to know as protected by Open Meeting and Public Records Laws and at the same time

respect the individual's right to privacy or the “privacy interest” as stated in Massachusetts Law.

An individual's right to privacy and the concept of confidentiality is particularly important in the

employment process.

It is the opinion of the Board that it has fully complied with the Open Meeting and Public Records Laws

in the hiring process for the Town Administrator of the Town of Conway.

THE HIRING PROCESS FOR TOWN ADMINISTRATOR

In developing the hiring process for the position of Town Administrator, it was the objective of the

Board of Selectmen to comply with the Open Meeting and Public Records Laws and protect the privacy

rights of individuals involved in the professionally and personally sensitive nature of the employment

process.

The Preliminary Screening Committee appointed by the Board was made up of the Board of Selectmen

(John P. O'Rourke, Jim Moore and Rick Bean); Chair of the Personnel Committee, Heather Rose;

Treasurer, Jan Warner and Andrea Llamas, former Administrative Aide to the Board of Selectmen in

Conway and current Town Administrator for the Town of Buckland.

The Board of Selectmen has considered the following:

That when applications and resumes were submitted by potential candidates, they became part of

“personnel files,” are subject to the Public Records Law and the Board of Selectmen became the

custodian of those personnel files.

That because it is relatively easy with email to submit resumes, the review of applications and

resumes did not constitute a “preliminary screening” but only a qualifications check against the

requirements of the position.

That the only “preliminary screening” conducted by the Preliminary Screening Committee was

the interviews of the five (5) candidates with the qualifications that most closely matched the

requirements of the position conducted in two (2) sessions with three (3) different interviewers in

each session, except for the Chair of the Personnel Committee who was present for both

sessions. There was no “prior preliminary screening.”

The interviews were conducted in executive session in accordance with MGL Chapter 30A,

Section 21(a)(8) that states:

A public body may meet in executive session to consider or interview applicants

for employment or appointment by a preliminary screening committee if the chair

declares that an open meeting will have a detrimental effect in obtaining qualified

applicants; provided, however, that this clause shall not apply to any meeting,

including meetings of a preliminary screening committee, to consider and

interview applicants who have passed a prior preliminary screening.

That one Selectmen, Jim Moore, did not participate in the interviews.

That at no time were there two Selectmen involved in the interview process at the same time and,

therefore, there was never a quorum of Selectmen when interviewing the five (5) candidates and

no violation of the Open Meeting Law.

That four (4) of the five (5) candidates interviewed expressed concern about their names being

revealed publicly.

That the five (5) candidates interviewed for the position of Town Administrator of the Town of

Conway are private citizens of the Commonwealth and are afforded the right of privacy under

the Privacy Statute in Massachusetts Law (MGL, Chapter 214, Section 1B).

That the names of the five (5) candidates connected with the fact that they applied for the

position of Town Administrator of the Town of Conway is “highly personal” and constitutes a

“legitimate concern” that could cause harm to their employment status, wage increases and/or

advancement with their present employer and, therefore, to their livelihood.

That the Preliminary Screening Committee ranked the five (5) candidates and recommended one

“finalist” to the Board for the position of Town Administrator.

THE RIGHT TO PRIVACY

Massachusetts residents have a statutory right to privacy. Massachusetts General Law (MGL), Chapter

214, Section 1B, known as the Privacy Statute, states that “A person shall have a right against

unreasonable, substantial or serious interference with his privacy.”

Under the Public Records Law (MGL, Chapter 66, Section 10) there is a privacy exemption that relates

to personnel files (MGL, Chapter 4, Section 7(26)(c)) that states:

personnel and medical files or information; also any other materials or data relating to a

specifically named individual, the disclosure of which may constitute an unwarranted

invasion of personal privacy

Based on the Public Records Law, some of the information contained in a resume may be exempt

from disclosure because it relates to a specifically identifiable individual and is the type of

information that is useful in making employment decisions.

The Supreme Judicial Court (SJC) described the type of personal information in which a privacy interest

exists under the Massachusetts Privacy Act as "facts about an individual that are of a highly personal or

intimate nature."

REFERENCES

A Guide to the Massachusetts Public Records Law, Published by William Francis Galvin, Secretary of

the Commonwealth, Division of Public Records, Updated January 2013,

www.sec.state.ma.us/pre/prepdf/guide.pdf

Exemption (c) – The Privacy Exemption

Exemption (c), the privacy exemption, is the most frequently invoked exemption. The language of the

exemption limits its application to:

personnel and medical files or information; also any other materials or data relating to a

specifically named individual, the disclosure of which may constitute an unwarranted

invasion of personal privacy (MGL, Chapter 4, Section 7(26)(c))

The privacy exemption is made up of two separate clauses, the first of which exempts personnel and

medical files.

The Massachusetts Supreme Judicial Court determined that exempting personnel information from

disclosure serves to protect the government’s ability to function effectively as an employer. (Wakefield

Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 802 (2000)).

While statutorily exempting personnel information from the expansive definition of public records, the

legislature did not explicitly define personnel information. (MGL, Chapter 4, Section 7(26)(c)) However,

judicial decisions acknowledge that the term is neither rigid, nor exact, and that the determination is

case-specific. (Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App

Ct 1, 5 (2003)) The custodian’s classification of materials as “personnel information” is not conclusive.

(Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 802 (2000))

Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the

analysis. (Worcester Telegram & Gazette Corp., 436 Mass. at 386.)

The nature of some materials and the context in which they arise take them beyond what the legislature

contemplated when exempting personnel information. (Worcester Telegram & Gazette Corp., 58 Mass.

App. Ct. at 9)

Generally, personnel information that is useful in making employment decisions regarding an

employee is sufficiently personal to be exempt pursuant to the first clause. (Emphasis added)

(Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000);

Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983)) Such information may include employment

applications, (Emphasis added) employee work evaluations, disciplinary documentation, and

promotion, demotion, or termination information. (Wakefield Teachers Association v. School Committee

of Wakefield, 431 Mass. 792, 798 (2000); Brogan v. School Committee of Westport, 401 Mass. 306, 308

(1987); Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); George W. Prescott

Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985).)

The second clause of the privacy exemption applies to requests for records that implicate privacy

interests. Its application is limited to “intimate details of a highly personal nature.”(Attorney General v.

Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 625 (1980))

Examples of “intimate details of a highly personal nature” include marital status, paternity, substance

abuse, government assistance, family disputes and reputation. (Attorney General v. Assistant

Commissioner of the Real Property Department of Boston, 380 Mass. 626 n. 2 (1980)) Portions of

records containing such information are exempt unless there is a paramount public interest in disclosure.

(Collector of Lynn, 377 Mass. at 156)

When applying the second clause of the exemption to requested records it is necessary to perform a two-

step analysis: first, determine whether the information constitutes an “intimate detail” and second,

determine whether the public interest in disclosure outweighs the privacy interest associated with

disclosure. (Collector of Lynn, 377 Mass. At 156) Consequently, the application of the second clause of

the exemption must be determined on a case-by-case basis.

For example: Does Exemption (c) permit resumes of public officials to be withheld from disclosure?

Some of the information contained in a resume may be exempt from disclosure because it relates to a

specifically identifiable individual and is the type of information that is useful in making employment

decisions. (Emphasis added)

COMPLAINT: MARCH 25, 2013

The complaint has been filed by Kathleen McKiernan, a reporter for The Recorder, a newspaper, located

at 14 Hope Street, Greenfield, MA. The Recorder is a commercial enterprise. Kathleen McKiernan is

gainfully employed by The Recorder and makes a living by writing stories and providing content for the

newspaper. It is in her commercial interest and that of the newspaper to continue to write stories that

appear in the newspaper. She has a commercial interest in knowing the names of the candidates. The

Board of Selectmen has not received any inquiries from Town residents or any other disinterested

member of the public concerning the name of the candidates. There is not a “paramount public interest

in disclosure” of this information.

Not only has Kathleen McKiernan filed a complaint against the Board of Selectmen, but she has also

written a story about her filing the complaint that appeared on the front page of the May 2 edition of The

Recorder. (Copy enclosed) Creating the news and then writing about it in the newspaper for which one is

employed for monetary gain seems to present a conflict of ethical journalism.

CONCLUSION

The Preliminary Screening Committee conducted a “preliminary screening” and one “finalist” was

selected, named and hired as the Town Administrator.

It is the opinion of the Board of Selectmen that the “legitimate concerns” expressed by the candidates

interviewed regarding their right to privacy in the employment process is more important than the

public's right to know in this case and that revealing their names would constitute an “unreasonable,

substantial or serious interference” with their privacy under the Privacy Statute ((MGL), Chapter 214,

Section 1B).

It is the opinion of the Board of Selectmen that the hiring process for the Town Administrator position

fully complies with the Open Meeting and Public Records Laws.

I certify that the information contained herein is true to the best of my knowledge and belief.

Date: May 6, 2013

Respectfully submitted,

John P. O'Rourke

Chairman, Board of Selectmen

Town of Conway

On April 22, the Board gave this preliminary statement to Kathleen McKiernan:

In the employment process, the public revelation of an employment application could be injurious to the

relationship of the candidate with his/her present employer. The lack of confidentiality in the

employment process would most probably discourage some qualified candidates from applying for a

position with a public entity. Four (4) of the five (5) candidates interviewed for the position of Town

Administrator expressed concern over having their name revealed publicly as an applicant for the

position.

The Town of Conway only conducted a preliminary screening followed by offering the position to the

candidate who scored the highest in the preliminary screening. The preliminary screening was conducted

in executive session under Open Meeting Law, MGL Chapter 30A, Section 21(a), Paragraph (8) that

states:

“A public body may meet in executive session only for the following purposes: To

consider or interview applicants for employment or appointment by a preliminary

screening committee if the chair declares that an open meeting will have a detrimental

effect in obtaining qualified applicants; provided, however, that this clause shall not apply

to any meeting, including meetings of a preliminary screening committee, to consider and

interview applicants who have passed a prior preliminary screening.”

There was only one preliminary screening and no intermediate screenings between the preliminary

screening and choice of a final candidate and, therefore, no requirement to reveal the names of

candidates selected in an intermediate screening.

It is the opinion of the Board of Selectmen that it has complied with the Open Meeting Law in the hiring

process for the position of Town Administrator.