MA Community Notes v. Human Resources Division (SPR 20243428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3428 Michele Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: On December 24, 2024, this office received your petition on behalf of the Human Resources Division (Division/HRD) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Colin (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 16, 2024, the requestor sought: [1] Communications and Correspondence Timeframe: January 1, 2023, to December 23, 2024 [nine identified parties]. These communications should address, but not be limited to, the following topics: Policies, procedures, and methodologies for developing, and validating the 2023 and 2024 Police and Fire promotional exams for all ranks[;] Discussions related to the qualifications, selection process, and roles of subject matter experts (SMEs) in exam development[;] Records related to the development and implementation of the Situational Judgment Test (SJT) component, including its, construction, and associated concerns[;] Correspondence of any kind expressing concerns about the Situational Judgment Test (SJT), including its, construction, fairness, or effectiveness[;] Policies and standards regarding test administration, scoring, and fairness. [2] All policies, procedures, manuals, or documents used during 2023 and 2024 related to: Validation processes for promotional exams, including methodologies to ensure test reliability, validity, and fairness[;] Criteria and processes for selecting subject matter experts, including standards for their qualifications and areas of expertise[;] Standards or policies governing test development, administration, and review, including documentation for the Situational Judgment 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 Heffernan, Esq. SPR24/3428 Page 2 December 27, 2024 Test (SJT) component. [3] Records related to the involvement of subject matter experts (SMEs) in the development and administration of Police and Fire promotional exams during 2023 and 2024, specifically including: The number of SMEs engaged for each exam and its components, categorized by Police and Fire and all ranks[;] Qualifications and selection criteria used to identify and engage SMEs[;] Records describing the roles, responsibilities, and contributions of SMEs in developing, validating, or scoring exam content, excluding information that would disclose actual exam content or scoring keys. [4] Copies of all contracts, agreements, or related documents with vendors providing services related to Police and Fire promotional exams during 2023 and 2024. This includes, but is not limited to: Exam development and administration[;] Validation processes[;] The Situational Judgment Test (SJT) and other exam components[;] Services provided by subject matter experts or other external consultants. [5] Personnel files or training records for the following [five identified] individuals involved in test administration, covering their roles, responsibilities, qualifications, and professional development [.] Petition to Assess Fees – Agencies A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id.

Michele Heffernan, Esq. SPR24/3428 Page 3 December 27, 2024 Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. Petition to Assess Fees In its petition, the Division requests to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: The request includes the emails of nine employees and a general civil service e- mail box for a period of almost two years. For each individual five different topic areas are requested. HRD will need to make an e-discovery request for these emails and each email will have to be reviewed to determine whether it falls within a topic area and whether an email is subject to privilege or one of the exemptions cited in our initial response. In correspondence enclosed with its petition the Department states: The Human Resources Division (HRD) will not be disclosing records related to the creation of exam items, the questions, answers, answer sheet creation, scoring methodologies/rubrics/procedures, the identities of subject matter experts or any record related to on-going work related to the development of future examinations or evaluation of candidates for promotion. In support, HRD cites to M.G.L. c. 4, § 7, cl. 26(a), M.G.L. c. 31, § 70 and M.G.L. c. 4, § 7, cl. 26(l) which provide a basis for withholding from disclosure: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument. The purpose of Exemption (l) and M.G.L. c. 31, § 70 is to prevent individuals from gaining an unfair advantage by using the Public Records Law to access exam development or scoring methodologies related to test questions and answers. In addition, HRD will not provide any records related

Michele Heffernan, Esq. SPR24/3428 Page 4 December 27, 2024 to its deliberative process that pertain to exam development or continued use or alteration of exam components. Such processes are currently under review and will serve as the basis for future examinations. Any records of this nature are withheld under M.G.L. c. 4, § 7, cl. 26(d). In addition, the communications among and between HRD test developer regarding the development of exams, related policies, manuals and procedures, the selection and utilization of subject matter expects relate to the internal practices of a government unit and are necessary to the appropriate function of the civil service exam process and may be withheld under Exemption (b). In addition, emails from the General Counsel to any employee of the Human Resources Division are subject to the attorney/client privilege and will not be disclosed. In light of the Division’s petition, I find the Division has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Division has met its burden to explain how the response could not be prudently completed without segregation or redaction. I encourage the parties to communicate further to enable the Division to provide records in an efficient and affordable manner. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Colin