Matthew Rocheleau v. Plymouth County District Attorney's Office (SPR 20210179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2021 SPR21/0179 Jessica Kenny, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Kenny: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Plymouth County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2021, Mr. Rocheleau requested “[a]ny/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment with the Plymouth District Attorney between Jan. 1, 2015 and present.” Mr. Rocheleau claimed “[t]he records sought by this public records request are, by law, a matter of public record. Specifically, M.G.L. Part IV, Title I, Chapter 268A, Section 6B.” 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, § 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, § 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, § 10(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. 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

Jessica Kenny, Esq. SPR21/0179 Page 2 February 10, 2021 Current Appeal The DAO provided a response on January 13, 2021. In its response, the DAO provided a good faith fee estimate based on redacting the names of immediate family members identified on the disclosure forms under Exemptions (o) and (p). Based on the DAO’s response, Mr. Rocheleau appealed on January 27, 2021, to this office stating, “. . . names of the family members identified on these disclosure forms cannot be redacted because the individuals in question either still are, or at least were at the time, public employees whose identities are a matter of public record, even if they’ve since left those jobs and no longer work for the state.” In addition, Mr. Rocheleau appealed the fee estimate, because “. . . the agency’s fee estimate lack[ed] the detail and specificity required under the public records law.” Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l 50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Exemption (p) Exemption (p) applies to: the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o) G. L. c. 4, § 7(26)(p). Under Exemptions (o) and (p), with respect to whether records can be redacted, the DAO asserted that it is “. . . required under G.L. c. 4, § 7, cl. 26(o)-(p) to redact the name of the family member. There is a clause in the statute you cite, G.L. c. 268A, § 6B, that permits inspection to the extent permissible by law.”

Jessica Kenny, Esq. SPR21/0179 Page 3 February 10, 2021 G. L. c. 268A, § 6B The statute requiring candidates for state employment to disclose the names of certain relatives who are state employees is as follows: Each candidate for employment as a state employee shall be required by the hiring authority as part of the application process to disclose, in writing, the names of any state employee who is related to the candidate as: spouse, parent, child or sibling or the spouse of the candidate's parent, child or sibling. The contents of a disclosure received under this section from an employee when such employee was a candidate shall be considered public records under section 7 of chapter 4 and chapter 66. All disclosures made by applicants hired by a state agency shall be made available for public inspection to the extent permissible by law by the official with whom such disclosure has been filed. G. L. c. 268A, § 6B. The statute provides that these written disclosures, including the names of certain state employee relatives of candidates, are public records. Id. The statute evidences a legislative intent to make these records, including the name of any state employment candidate’s spouse, parent, child, or sibling of the candidate’s parent, child or sibling, available for inspection. Id. Conclusion Accordingly, the DAO is ordered to provide Mr. Rocheleau with the requested disclosure records, in 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau