Matthew Rocheleau v. Northwestern District Attorney's Office (SPR 20210389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2021 SPR21/0389 Cynthia Von Flatern, Esq. Assistant District Attorney Northwestern District Attorney’s Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Northwestern District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 20201, Mr. Rocheleau requested, “Any/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment with the Northwestern District Attorney between Jan. 1, 2015 and present [including] … the identity of the job applicant; the job they were applying for; the date they applied; the date they were hired … ” Previous Appeal This request was the subject of a previous appeal. See SPR21/0242 Determination of the Supervisor of Records (February 14, 2021). The Office responded on February 10, 2021. Unsatisfied with the response, Mr. Rocheleau appealed and SPR21/0389 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Cynthia Von Flatern,, Esq. SPR21/0389 Page 2 March 2, 2021 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). The Office’s February 10th response The Office responded on February 10th, providing certain information and claiming Exemption (p) of the Public Records Law to redact the name of family members. 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). In its response, the Office stated, “[i]n accordance with Mr. Rocheleau's request, the name of each employee who had listed a family member working for the Commonwealth of Massachusetts was provided along with the employee's position held, date of application for employment, date of hire, and date of separation from employment, if any. A second page, the disclosure page listing the name of the family member engaged in state employment and that family member's job title was also provided. However, the name of the family member was redacted. This redaction complies with G.L. c. 4, §7 26 (p) …” The statute cited by the Office 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.

Cynthia Von Flatern,, Esq. SPR21/0389 Page 3 March 2, 2021 G. L. c. 268A, § 6B. The Office asserted, “[the Office] has provided the disclosure form because, pursuant to G.L. c. 268A, §6B, that form is considered a public record under G.L. c. 4, §7 and c. 66. [The Office] ha[s] redacted the name of the employee because that particular piece of information is exempt from the definition of public records. G.L. c. 4, §7 26 (p). Moreover, G.L. c. 268A, §6B specifically removes from the requirement of public disclosure any information that is exempt under the law.” The statute provides that these written disclosures, including the names of certain state employee relatives of candidates, are public records. See G. L. c. 268A, § 6B. 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. I find that the Office has not met its burden to redact the responsive records under the exemption described above. Conclusion Accordingly, the Office 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