Cat 926mw5 v. Department of Fire Services (SPR 20240198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0198 Glenn M. Rooney, Esq. General Counsel Department of Fire Services P.O. Box 1025, State Road Stow, MA 01775 Dear Attorney Rooney: I have received the petition of Cat (“requestor”) appealing the response of the Department of Fire Services (Department/DFS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2023, the requestor sought the following: [1.] Copies of any annual diversity reports filed by DFS for fiscal years 2023 and 2024. [2.] Copy of DFS’s most recent Diversity Plan. [3.] Copies of any and all policies, procedures, rules or directives that pertain to- · Recruitment or outreach efforts for job openings · Process for reviewing job applications · Interview process for new hires and promotions · Onboarding for new hires · Promotional process for existing employees and notification process for existing employees not promoted [4.] Copies of all job postings, announcements and descriptions for job openings in fiscal year 2024. [5.] List of all employees with their diversity status who have been promoted and not promoted for job openings in fiscal year 2024. [6.] List of all vacancies at DFS as of date of this request. [7.] Copies of all communications, paper or electronic, to include emails, text messages, instant messages, social media messages and posts sent by DFS management to any and all job applicants or candidates selected for an interview or candidates for promotion in fiscal year 2024. [8.] Copies of any lawsuits, claims of grievance filed against DFS related to department hiring or promotions. 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. SPR24/0198 Page 2 February 6, 2024 On November 13, 2023, the requestor narrowed Part 7 of the request by identifying approximately thirteen subjects of communication that they seek. The Department responded on December 8, 2023, providing numerous records in redacted form, and claiming the responsive records were redacted pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR24/0198, 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 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. 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. 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 Department’s December 8th Response In its December 8, 2024 response, the Department provides numerous responsive records, and cites Exemption (c) of the Public Records Law for redacting the responsive communications. See G. L. c. 4, § 7(26)(c). 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). Massachusetts courts have found that “core categories of personnel information that are

Glenn M. Rooney, Esq. SPR24/0198 Page 3 February 6, 2024 ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Department argues the following: The responsive communications, 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. This record, which memorializes an applicant’s path 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. Even assuming arguendo that these records were not personnel records, the Department is forced under the second clause of exemption (c) to consider and assess the weight of the privacy interest at stake... . . . 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

Glenn M. Rooney, Esq. SPR24/0198 Page 4 February 6, 2024 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 pursuant to Exemption (c). See Att’y Gen. v. Sch. Comm. of Northampton, 375 Mass. 127, 132 n.5 (1978). 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. In this case, it is unclear whether the Department has redacted the identifying information of individuals who advanced past the initial application stage. The Department must clarify this. Additionally, 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). Here, although the applicants who did not advance past the initial application stage may have an undiminished privacy interest in their identity, it is unclear how the privacy interests of applicants who were hired or who were selected for promotion outweigh the public interest in disclosure. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Glenn M. Rooney, Esq. SPR24/0198 Page 5 February 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Cat 926mw5