Anthony Tranghese v. Executive Office of Energy and Environmental Affairs (SPR 20242749)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2024 SPR24/2749 Yuna Choi, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Choi: I have received the petition of Anthony Tranghese appealing the response of the Executive Office of Energy and Environmental Affairs (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 15, 2024, Mr. Tranghese requested, “scoring from the interview panel in comparison to the scoring of the recipients of the position,” for the Eastern Captain and Special OPS captain positions as well as the vacant colonel’s position. Previous Appeal This request was the subject of a previous appeal. See SPR24/2578 Determination of the Supervisor of Records (September 23, 2024). In my September 23rd determination, I was informed that the Office intended on providing Mr. Tranghese with a supplemental response. The Office responded on October 2, 2024, withholding responsive records under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the Office’s response, Mr. Tranghese petitioned this office and this appeal, SPR24/2749, was opened as a result. Status of the Requestor In his appeal petition, Mr. Tranghese states, “[I] have the absolute right to know how [I] scored in comparison to other candidates.” 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. Tranghese’s status will not play any role in a determination as to whether the records should be disclosed or redacted under the 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

Yuna Choi, Esq. SPR24/2749 Page 2 October 17, 2024 Public Records Law. 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. Current Appeal In his appeal petition, Mr. Tranghese states: … As a meritorious employee of the state for over 42 years, [I] have the right to know how candidates with five years on the job received managerial promotions. You have also argued these ratings are ‘personnel protected records.’ If you reference the newly formed ‘Post Commission, ‘every police officer faced with disciplinary matters is posted all over the internet for public viewing. Those should be the highest safeguarded personnel records. However; in the interest of transparency, they are open to the public. Also, view the ‘open checkbook’ site for state employees. All our salaries are made public in the interest of transparency. The promotions were obviously flawed along with the process of the agency re- doing them to get their chosen candidates. For reasons illustrated, [I] have the absolute right to know how [I] scored in comparison to other candidates. I am not asking for private information, just interviewer’s notes and scoring. I have not asked for email correspondence at this time between the colonel and the interview board; however, l will move forward with that request if this is the final and binding decision of EEA.

Yuna Choi, Esq. SPR24/2749 Page 3 October 17, 2024 The Office’s October 2nd Response In its October 2, 2024 response, the Office cites Exemption (c) of the Public Records Law for withholding records responsive to Mr. Tranghese’s request. 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 ‘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. School Comm., 431 Mass. 792, 798 (2000). 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. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims

Yuna Choi, Esq. SPR24/2749 Page 4 October 17, 2024 made by the Office to withhold the responsive records, the Office must provide this office with un-redacted copies of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Anthony Tranghese