Colin X v. Human Resources Division (SPR 20250015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2025 SPR25/0015 Michele Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Colin (requestor) appealing the response of the Human Resources Division (Division/HRD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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 Test (SJT) component. [3] Records related to the involvement of subject matter experts (SMEs) in 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

Michele Heffernan, Esq. SPR25/0015 Page 2 January 16, 2025 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[.] Prior Petition This request was the subject of a previous fee petition. See SPR24/3428 Determination of the Supervisor of Records (December 27, 2024). In my December 27th determination, I found that the Division had met its burden to assess a fee for the segregation and redaction of exempt material. The Division provided a response on December 24, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/0015, was opened as a result. Subsequent to the opening of this appeal, the Division provided a response on January 7, 2025. 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.

Michele Heffernan, Esq. SPR25/0015 Page 3 January 16, 2025 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Division’s December 24th and January 7th Responses In its December 24th response, the Division stated: Obtaining and reviewing all emails of the nine non-attorney HRD employees for a two-year period will take 40 hours. It will take a minimum of twenty-five business days to make the appropriate e-discovery request, review and redact the records. In addition, the review and redaction of personnel records will take an additional four hours. Therefore, HRD will require the payment of $1000.00 to fulfill this request. The Division further explained that it would be redacting the responsive records pursuant to Exemptions (a), (b), (c), (d), and (l) of the Public Records Law. In its January 7th response, the Division provided the requestor with records responsive to Requests #4 and #5, redacted pursuant to Exemptions (c) and (o) of the Public Records Law. The Division stated that it had already expended more than four hours of employee time responding to the request. Although the Division has estimated that the process of compiling, reviewing, and preparing the remaining responsive documents for production will take 40 hours of employee time, the Division has not provided sufficient explanation of why 40 hours of employee time is necessary. The Division must advise how many hours it requires to search and how many hours it requires to segregate and redact the records in order to comply with the records request. The Division must also advise how many pages of records it has in its custody, and how many minutes per page it will take to segregate and redact the responsive records. The Division must also clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Division must revise its fee estimate or provide further explanation of how the fee of $1,000.00 assessed in its December 24th estimate is consistent with G. L. c. 66, § 10(d). This office encourages the requestor and the Division to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Michele Heffernan, Esq. SPR25/0015 Page 4 January 16, 2025 Conclusion Accordingly, the Division 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 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. The requestor may appeal the substantive nature of the Division’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colin