Kenneth Ellis v. Brockton, City of (SPR 20231866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2023 SPR23/1866 Kayla J. Venckauskas, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Venckauskas: I have received the petition of Kenneth Ellis appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2023, Mr. Ellis requested the following: As an individual interested party in the independent review of candidates for Police Lieutenant by the Firm Public Safety Consultants, I respectfully request, pursuant to the Massachusetts Public Records Law, any and all records related to this matter. This includes but is not limited to plans, emails, letters, memos, notes, and any other documentation or communication between all involved parties including the assessments, findings, and ranking of all three candidates interviewed. The City responded on July 21, 2023, citing Exemptions (c) and (l) for withholding responsive records, and indicating that the records are the subject of active litigation. See G. L. c. 4, § 7(26)(c), (l). Unsatisfied with the City’s response, Mr. Ellis appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Ellis’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Kayla J. Venckauskas, Esq. SPR23/1866 Page 2 August 25, 2023 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 agency or municipality 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. Att’y 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. 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. The City’s July 21st Response In its July 21, 2023 response, the City cites Exemption (c) and (l) of the Public Records Law for withholding responsive records, and argues that the records at issue are the subject of pending litigation. See G. L. c. 4, § 7(26)(c), (l). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Based on the City’s July 21st response, it is unclear whether there is active litigation concerning the requested records. Specifically, the City has not provided a Trial Court docket number referring to the possible litigation discussed in the response. See 950 C.M.R. 32.08(2)(b). Additionally, although the City has provided a Civil Service Commission Case Number, it is not clear whether this Civil Service Commission appeal remains active and ongoing. See Kenneth Ellis v. City of Brockton, Civil Service Commission, Case No. E-22-134. Based on the forgoing, it is necessary to address the City’s claims under Exemptions (c) and (l) of the Public Records Law.

Kayla J. Venckauskas, Esq. SPR23/1866 Page 3 August 25, 2023 Exemption (c) Exemption (c) applies to: 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. 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). When analyzing a privacy claim, there is 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 City argues that “the records are being withheld because the candidate scores and written analysis are evaluative and privileged.” Additionally, the City argues that “this invasion to the personal privacy of the candidates outweighs any interest the public may have in disclosure as it is the responsibility of the city to maintain the confidentiality of the scores and assessments pertaining to these individual.” Based on the City’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The City must clarify these matters.

Kayla J. Venckauskas, Esq. SPR23/1866 Page 4 August 25, 2023 Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). Under Exemption (l), the City argues the following: The final assessment report provided by Public Safety LLC contains proprietary examination material which is exempt from public disclosure under Massachusetts exemption (l) and may not be copied or distributed in any manner or format without the specific written authorization of Public Safety Consultants, LLC, Boxford, Massachusetts.... This exemption is in place to ensure the integrity of future examinations/assessments. Based on the City’s response it is unclear how the “final assessment report” constitutes the type of material contemplated under Exemption (l). Additionally, it is unclear whether the withheld examination material is being used currently or for future examinations by the City. The City must clarify these matters. Burden of Specificity, Identification of the Records The City is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, it is unclear how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (c) and (l). See G. L. c. 66, § 10(b)(iv) (a 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,

Kayla J. Venckauskas, Esq. SPR23/1866 Page 5 August 25, 2023 including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide Mr. Ellis with a response to his 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, Manza Arthur Supervisor of Records cc: Kenneth Ellis