Matthew Rocheleau v. Department of Fire Services (SPR 20211670)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2021 SPR21/1670 Glenn M. Rooney, Esq. Department of Fire Services 1 State Road, P.O. Box 1025 Stow, MA 01775 Dear Attorney Rooney: I have received the petition of Matthew Rocheleau appealing the response of the Department of Fire Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2021, Mr. Rocheleau requested “[a]ny/all posting/vacancy announcement(s); any/all applicant flow data sheet(s) aka candidate/applicant scoresheet(s); and any/all request(s) for waiver for each of [two specified] Req. Identifier/Posting ID codes.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1650 Supervisor of Records Determination (July 20, 2021). In my July 20th determination, I closed SPR21/1650 in light of the response provided by the Department on July 6, 2021. Unsatisfied with the Department’s response, Mr. Rocheleau appealed and this case was opened as 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 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

Glenn M. Rooney, Esq. SPR21/1670 Page 2 July 20, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In his appeal petition, Mr. Rocheleau states that “[t]he department's July 6th response states the DFS is withholding records in their entirety -- namely applicant flow data sheet(s) -- citing exemption (c).” Mr. Rocheleau argues that he does “not believe this exemption permits the department to withhold the records in their entirety.” He contends that “in this particular instance, the department could simply redact the names of the individuals on the applicant flow data sheets and exemption (c) would not apply.” The Department’s July 6th Response In its July 6, 2021 response, the Department provides numerous responsive records, and claims to withhold applicant flow data sheets pursuant to Exemption (c) of the Public Records law. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ----------------------------

Glenn M. Rooney, Esq. SPR21/1670 Page 3 July 20, 2021 (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Department argues the following: The responsive applicant flow data sheets, which contain information regarding identifiable individuals who, at one time, were seeking employment with the Department of Fire Services also reveals whether those individuals were selected for hire, selected as a finalist but not hired, interviewed, not interviewed, withdrew their candidacy from consideration by the Department, their interview score and comments by the interviewers. These records, which memorialize applicants’ paths to hire (or not) and their performance during the interview stage falls squarely within the core category of personnel information useful in making employment decisions (that is, the fundamental decision to hire) and is therefore exempt from disclosure. The Department further contends that “[e]ven assuming arguendo that these records were not considered personnel records, the Department must consider and assess under . . . exemption (c), the weight of the privacy interest at stake.” The Department goes on to argue: Here, the public interest in revealing those individuals who applied for, were interviewed for and selected for specifically identified positions within the Department of Fire Services and their overall interview performance does not outweigh the substantial invasion of privacy that would occur through disclosure. It is true that applicants for positions at the Department of Fire Services and other agencies alike have an expectation of privacy that their decision to apply for and interview for a position will not be a matter of public record. Understandably, if the requested information was disclosed, a candidate who applied for but was not selected for a position with the Department could face negative consequences with their current employer if such information was revealed as a matter of public record. An applicant’s pursuit of a position with the Department of Fire Services does not constitute a complete waiver of all privacy interests at stake. In the Department’s reasonable judgment, the public interest in obtaining the requested information does not substantially outweigh the seriousness of the invasion of privacy in this instance. Records Pertaining to Candidates Not Hired A general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld

Glenn M. Rooney, Esq. SPR21/1670 Page 4 July 20, 2021 pursuant to Exemption (c). Northampton, 375 Mass. at 132 n.5. Based on the Department’s response, I find the Department has met its burden to show that the candidates who were not hired or appointed have a privacy interest in these matters. However, as described above, the balancing test for Exemption (c) provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Further, the public has an interest in transparency in the process of hiring, managing and compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 28 Mass. L. Rep. 499 (2011). As such, it is unclear why the Department cannot redact identifying information from the applicant flow data sheets and provide the remaining information in order to shed light on the applicant pool and application process while also protecting privacy interests. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide a response to this request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau Mark Arsenault