Matthew Rocheleau v. Human Resources Division (SPR 20181657)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 3, 2019 SPRlS/1657 Michele Heffernan, Esq. Deputy General Counsel Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Human Resources Division (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 10, 2018 Mr. Rocheleau requested "[a]ny/all grievances and unfair labor practice charges/complaints filed by employees of the Massachusetts Environmental Police and/or any union(s) that represent(s) that agency's employees since Jan. 1, 2015; and any/all formal filings made in those grievance cases." On October 18, 2018 he requested the following records: • The results of any/all promotional exams taken by Massachusetts Environmental Police employees Mark Brighenti and Rob Roy MacGregor since Jan. 1, 2014. • Any/all emails, messages ( electronic or otherwise), or notices informing Massachusetts Environmental Police employees Mark Brighenti and Rob Roy MacGregor of the results of any/all promotional exams they took since Jan. 1, 2014. • Any/all emails, messages ( electronic or otherwise), or notices informing Massachusetts Environmental Police employee Paul Norton of the results of any/all promotional exams he took since Jan. 1, 2014; and any/all emails, messages (e lectronic or otherwise), or notices sent during 2018 informing Massachusetts Environmental Police employee Paul Norton about why he was not promoted. • Any/all lists created since Jan. 1, 2015 of promotion eligible law enforcement employees within the Massachusetts Environmental Police department, including 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

Michele Heffernan, Esq. SPR18/1657 Page2 January 3, 2019 each employee's full name, their rank on the list, and their eligible date. (Note this request is for both certified and uncertified versions of said lists) • A list of any/all promotions and demotions of law enforcement employees at the Massachusetts Environmental Police since Jan. 1, 2015; or any/all emails, messages ( electronic or otherwise), or notices informing Massachusetts Environmental Police department members about promotions, demotions, or both. This request was the subject of a previous determination. See SPR18/1657 Determination of the Supervisor of Records (November 26, 2018). In the November 26th determination I ordered the Division to provide this office with an unredacted copy of the responsive records without delay. The Division provided these records and I would like to thank the Division for its cooperation. 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, § IOA(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, § 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, § 1 O(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. Appeal The Division initially responded on November 7, 2018 by providing certain records but withholding others under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The Division provided certain grievances and also notes it " ... only has grievances that are filed to Step III or Arbitration under the parties' collective bargaining agreement. Any grievances filed only to Step I or Step II would be available from the Massachusetts Environmental Police." You also note that "[i]t is my understanding that a list of promotions is being provided by the Massachusetts Environmental Police, as such, HRD will refer you to that list." The Division withheld other records, indicating that "[a]ny grievance or civil service matter involving employee discipline, transfer, personnel record, or promotion have been withheld pursuant to G. L. c. 4, § 7(26)(c), the privacy exemption. See also: Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000)."

Michele Heffernan, Esq. SPR18/1657 Page 3 January 3, 2019 Exemption (c) Exemption ( c) permits the withholding of: 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 G. L. c. 4, § 7 (26)(c). 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). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. 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 the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publ'g Co. v. Register of Probate for Norfolk Cnty, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). The Division claims Exemption ( c) to withhold Civil Service exam scores and asserts "Civil Service exam scores and any information that is subjective or evaluative in nature, including Civil Service bypass information, constitutes 'personal' information and is therefore exempt from disclosure. Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983). The Public Records Division of the Secretary of State has stated that the Commonwealth may withhold the civil service examination scores pursuant to exemption ( c) . (SPR99/502). Therefore, the score notices or other record providing identifying a score has been withheld or redacted." In his appeal petition Mr. Rocheleau asserts that "the records related to grievance and civil service matters involving discipline, transfer, personnel record, or promotion should not be

Michele Heffernan, Esq. SPR18/1657 Page 4 January 3, 2019 withheld in their entirety." He asks this office to order the Division to" ... review those responsive records, redact if necessary, and provide them." He also notes that" ... the Globe disagrees with the division's claim that civil service exam scores are exempt from disclosure and would argue that at a minimum the division should be ordered to provide information as to whether the employees named in the Globe's request passed or failed each exam they took during the dates requested." In camera review In light of its November ih response, I find the Division has met its burden to withhold responsive Civil Service exam scores under the personnel clause of Exemption ( c ). See Globe Newspaper Co. v. Edward Flynn, Suffolk Superior No. 04-0571, at 7 (2004) (providing that exempt personnel information " ... is collected in order to make employment decisions regarding a particular employee.") With respect to the remaining responsive records, upon in camera review, I find it remains unclear how such records may be withheld in their entirety. In particular, the Division has not met its burden to demonstrate how the requested "grievances and unfair labor practice charges/complaints filed by employees of the Massachusetts Environmental Police and/or any union(s) that represent(s) that agency's employees since Jan. 1, 2015; and any/all formal filings made in those grievance cases," are collected in order to make employment decisions. Further, it is unclear how a filed grievance, or the outcome of a grievance, are "core categories of personnel information that are 'useful in making employment decisions regarding an employee' that may be withheld from disclosure under Exemption (c). See Wakefield, 431 Mass. at 798. Conclusion Given that the Division has not met its burden to explain how an exemption applies to the requested records, the Division is ordered to review the records, redact where necessary, and provide Mr. Rocheleau with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. The Division may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau