Matthew Rocheleau v. Human Resources Division (SPR 20190948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 28, 2019 SPR19/948 Michele M. Heffernan, Esq. 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 (electronic 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 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); and 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 M. Heffernan, Esq. SPR19/948 Page2 May 28, 2019 • 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. Previous appeal and determinations This request was the subject of a previous appeal and determinations. See SPRl 8/1657 Determinations of the Supervisor of Records (Supervisor) (November 26, 2018 and January 3, 2019). Initially, the Division responded on November 7, 2018 by providing certain records but withholding others under Exemption ( c) of the Public Records Law. 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 noted 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." Upon in camera review of the responsive records and in light of the Division's November ih response, I found in my January 3rd determination that the Division had 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 responsive grievance records, upon in camera review, I found it remained unclear how such records may be withheld in their entirety. In particular, the Division had 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," can be withheld under Exemption (c) in their entirety. Further, I found, it was 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. Accordingly, I ordered the Division to review the records, redact where necessary, and provide Mr. Rocheleau with the responsive records. 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, § lOA(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).

Michele M. Heffernan, Esq. SPR19/948 Page 3 May 28, 2019 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) (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 ... "); 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). Current appeal-tlte Division's May 13, 2019 response In its May 13th response, the Division indicates, "[i]n a previous response, you have been provided with the pending unfair labor practice charges and any grievances that did not involve personal information useful in making employment decisions regarding an employee. Attached are those remaining grievances and related filings what have been redacted consistent with the Supervisor's [January 3rd] order." The Division's response states that it redacted the grievances under the first clause of Exemption ( c) in the Public Records Law. As a result of the redacted grievances, Mr. Rocheleau petitioned the Supervisor, and the current appeal was opened. In his petition, Mr. Rocheleau states, "[the Division] has redacted information that appears to be a matter of public record, and the Globe requests that the [Supervisor], which has examined these documents in a previous in camera review, rule on whether [the Division] appropriately redacted these documents." 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

Michele M. Heffernan, Esq. SPR19/948 Page 4 May 28, 2019 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). Grievances In its May 13th response, the Division explained, "[a]s stated in earlier responses, employees who hold bargaining unit positions can file grievances pursuant to their collective bargaining agreement objecting to a personnel action taken by management. There are certain personnel actions, such as those related to discipline or personnel records, that by their very nature are personal and related to an identifiable individual." In response to the Supervisor's January 3rd order and after this office's in camera review of the grievance documents, the Division provided the grievances with redactions pursuant to Exemption (c). The May 13th response from the Division explains, "[t]he redacted information included the grievant' s name, the date of the violation, the article and section of the CBA that was allegedly violated, the settlement desired, and narrative descriptions of the grievance." In addressing the risk of identifying the individuals at issue, you assert, " [d ]isclosure of any of this information could reveal the identity of the grievant, and by extension, would reveal exempt personnel information, since we already stated that these files pertain to employee discipline and promotions. Even without providing the grievant' s name, providing information such as the nature of the alleged CBA violation, the date that incident occurred, or information about the grievant's position would allow the reader to reverse-engineer the identity of the grievant." Conclusion In light of the Division's production of the redacted grievances and its May 13th response, I find the Division has met its burden to withhold the redacted information within the grievances at issue under Exemption (c). See Globe Newspaper Co., 388 Mass at 438.

Michele M. Heffernan, Esq. SPR19/948 Page 5 May 28, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau