A. Gardner v. Human Resources Division (SPR 20243107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2024 SPR24/3107 Michele M. Heffernan, Esq. Human Resource Division 100 Cambridge Street, Suite 60 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of A. Gardner appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 9, 2024, A. Gardner requested: [R]ecords comparing the performance of minority test-takers for both Police and Fire promotional exams across all ranks for the years 2023 and 2024. There has been speculation that minority candidates are performing worse since the changes were implemented following the 2022 Tatum v. Commonwealth decision, which identified bias in the promotional exams. Please provide data from both before and after these adjustments, including performance comparisons by demographic group and any documentation detailing the changes made in response to the court ruling. Additionally, I would appreciate clarification on whether all issues in calculating Education and Experience (E/E) points, as well as other concerns that have been appealed since 2023, have been fully addressed. On October 28, 2024, the Division provided A. Gardner with a response. Unsatisfied with that response, A. Gardner petitioned this office, and this appeal was opened. 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). 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

Michele M. Heffernan, Esq. SPR24/3107 Page 2 November 26, 2024 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 Division’s October 28th response In its October 28, 2024 response, the Division stated, “[w]e are in receipt of your request. We expect that the data will be ready to share later this week.” Current Appeal In the petition, A. Gardner stated, “[a] public records request was made to Civil Service in regards to the enclosed records on October 9th, 2024. Confirmation of receipt was received, to present date no … records have been produced.” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where A. Gardner submitted the request on October 9, 2024, and the Division has not provided the responsive records, nor cited an exemption for withholding records, I find that the Division has not met its burden in responding to the request in accordance with G. L c. 66, § 10(b)(vi). Consequently, the Division must provide an estimated date as to when it intends to complete the search and provide any responsive records. See G. L. c. 66, § 10(a) (records must

Michele M. Heffernan, Esq. SPR24/3107 Page 3 November 26, 2024 be provided without unreasonable delay). To the extent possible, the Division must provide responsive records on a rolling basis. Conclusion Accordingly, the Division is ordered to provide A. Gardner 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. A. Gardner may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: A. Gardner