Matthew Rocheleau v. Berkshire District Attorney's Office (SPR 20210330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2021 SPR21/0330 Richard Dohoney, Esq. Berkshire District Attorney’s Office 7 North Street P. O. Box 1969 Pittsfield, MA 01202 Dear Attorney Dohoney: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Berkshire 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 Berkshire District Attorney between Jan. 1, 2015 and present.” The DAO responded on February 3, 2021, denying access to responsive records pursuant to Exemptions (o) and (p) of the Public Records Law. G. L. c. 4, § 7(26)(o), (p). Unsatisfied with the DAO’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/0330, was opened as a result. 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 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

Richard Dohoney, Esq. SPR21/0330 Page 2 February 18, 2021 or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. Current appeal In its February 3, 2021 response, the DAO states, “[a]ttached please find our response to your public records request. Names of relatives have been redacted pursuant to Massachusetts General Laws ch. 4 s. 7 cl (o) and (p).” In his appeal, Mr. Rocheleau contends, “[t]he names of the family members identified on these disclosure forms cannot be withheld or 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 …” 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).

Richard Dohoney, Esq. SPR21/0330 Page 3 February 18, 2021 Candidates for employment as state employee; disclosure of relation to state employee The DAO is advised that disclosure of candidates for employment as state employee and disclosure of relation to state employee is governed under G. L. c. 268A, § 6B: 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 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau