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SECTION V: EXCEPTION I
1. To discuss the reputation, character, physical condition or mental health, rather than the professional competence of an idividual, provided that the individual involved in such executive session has been notified in writing by the governmental body, at least forty-eight hours prior to the proposed executive session. Notification may be waived upon agreement of the parties. A governmental body shall hold an open meeting if the individual involved requests that the meeting be open.
The purpose of this provision is to strike a balance between an individual's right to privacy and the public's right of access to the governmental process. This is consistent with other statutes which recognize that, "A person shall have a right against unreasonable, substantial or serious interference with his privacy." G.L. c.214 s.1B and which protect against disclosure of information, "which may constitute an unwarranted invasion of personal privacy." G.L. c.4 s.7 clause 26(c).
It has also been recognized that the exception is designed to enable a public body to engage in candid discussion about the character and reputation of an individual who is the subject of potential action by that public body.
Along with the permitted executive session, an individual's rights are protected within this exception by the right to be present during discussions or considerations which involve him, the right to have counsel, and the right to speak in his own behalf.
It is clear that the exclusion of discussions concerning "professional competence" from this exception is a recognition of an overriding public right to be informed of the qualifications of individuals who are being considered for, or who are actively engaged in public service. The public's right to know is superior, in this instance, to an individual's preference that his professional competence not be the subject of public discussion.
The exclusion of "professional competence" discussions from this exception has led to litigation in the area of discussions concerning applicants for public employment. The courts have recognized that the Open Meeting Law shall be in force "only so far as [it is] not inconsistent with the provisions of any general or special law," G.L. c.39 s.24. It has been argued that the provisions of statutes recognizing rights against unreasonable, substantial or serious interference with privacy can be used to justify private discussion of a job candidate's qualifications.
While no court has recognized an exception for job applicant discussions based upon statutory rights to individual privacy, the Supreme Judicial Court has indicated that it would not recognize such an exception unless it could be shown on the facts of an individual case that "disclosure...would have... an unreasonable, substantial or serious interference with [a candidate's]....privacy." Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978). In the same case, the court rejected the school committee's argument that forced disclosure in such circumstances could discourage potential applicants. The court acknowledged that the school committee raised a policy consideration which could be addressed by the legislature, but indicated that it would only consider claims where it was shown that disclosure would impinge on a candidate's statutory right of privacy.
Whether an applicant who has reached the level of consideration for appointment by a public body could successfully claim a private discussion of his "professional competence" is doubtful in light of the statute's specific exclusion of such discussion from the executive session exception, and the obvious fact that an applicant who had reached the level of consideration for public employment should expect open and public discussion of his qualifications. Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978).
