Michael J. Billiel v. University of Massachusetts Amherst - Police Department (SPR 20170836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3,2017 SPR171836 Deputy Chief Patrick T. Archbald University of Massachusetts Police Department 585 East Pleasant Street Amherst, MA 01 003-9600 Dear Deputy Chief Archbald: I have received the petition of Michael J. Billiel appealing the response of the University of Massachusetts Amherst Police Department (Department) to a request for public records. G. L. c. 66 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Billiel requested a copy of all records regarding the recruit officers' exam and subsequent oral board evaluations, including a list of what each candidate who advanced to the oral board interviews scored on the written exam and the oral board scores. The Department provided Mr. Billiel with a copy of the list of candidates with personally identifying information redacted pursuant to the second clause of Exemption (c), and withheld in its entirety the oral board evaluations under the second clause of Exemption (c) of the Public Records Law. Basis of the appeal Mr. Billiel appealed the Department's response, stating, "I am not asking for addresses, social security numbers, etc. Just the test scores of the written examination and oral boards, and where the applicants rank on the list for the police officer positions." Furthermore, Mr. Billiel believes it is in the best interest of the public to ensure the hiring process of state employees is fair and transparent. Requirements for Jiling a petition for an appeal Whereas Mr. Billiel did not provide the Records Access Officer (RAO) with a copy of his petition to the Supervisor of Records (Supervisor), this office provided the RAO with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.rna.us

Deputy Chief Patrick T. Archbald Page 2 July 3,2017 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, 5 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet at http://www.sec.state.ma.us/pre/prepdf/guide.~dPfu.b lic Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Exemption (c) The Department provided a list of candidates (applicants) for the police officer positions, but withheld all records from the oral board evaluations and the written test score, along with the candidates' rankings on the list that was redacted of all personally identifiable information pursuant to the second clause of Exemption (c) of the Public Records Law. Mr. Billiel indicated in his petition to the Supervisor that he did not request the actual written test records and/or records from the oral board evaluation of candidates. Instead, Mr. Billiel seeks only the candidate names, written test and oral board scores and the candidates' rankings on the list for the positions. Therefore, the Department must justify withholding the test and board scores and the names of the candidates matched with their rankings on the list of candidates under the second clause of Exemption (c). Exemption (c) applies 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 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only

Deputy Chief Patrick T. Archbald SPRl71836 Page 3 July 3,2017 the second clause of Exemption (c) pertains to this appeal. Analysis under the second clause of 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. Attorney Gen., 391 Mass. 1,9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. The second clause of Exemption (c) 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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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 lmowing whether public servants are carrying out their duties Id, in a law-abiding and efficient manner. at 292. The Department's June 6"' response merely states that the applicants on the list have a reasonable expectation that their personal information, including the fact that they are participating in the testing process, will be kept private, including from their current employers, family members or other third parties. The Department should be aware that individuals applying for public positions have a diminished expectation of privacy the further along the candidate proceeds in the application process. It remains unclear how each of the individuals whose scores and rankings on the list for a public-sector job would result in personal embarrassment to an individual of normal sensibilities, nor how they would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. at 292. In addition, the Department must provide additional information regarding the balancing test in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested scores and rankings in addition to the names of the applicants substantially outweighs the seriousness of any invasion of privacy. See id. at 291 -92.

Deputy Chief Patrick T. Archbald Page 4 July 3,2017 I find that the Department has not met its burden of providing enough detail in its response to withhold the scores and rankings of the named candidates for police officer positions withheld under the privacy clause of Exemption (c). The Department has not demonstrated how the privacy clause of Exemption (c) allows the Department to withhold the information in its entirety. Order Accordingly, the Department is hereby ordered to provide Mr. Billiel with a detailed response to the request and its second clause of Exemption (c) claim to withhold the information, 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 this response to this office at pre@,sec.state.ma.us. Mr. Billiel may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray V Supervisor of Records cc: Michael J. Billiel