David Brown v. Human Resources Division (SPR 20250149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2025 SPR25/0149 Michele M. Heffernan, Esq. Primary Records Access Officer Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: On January 16, 2025, this office received your petition on behalf of the Massachusetts Human Resources Division (Division) requesting permission to assess fees for time spent segregating and 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 Division furnished a copy of the petition to the requestor, David Brown. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 8, 2025, Mr. Brown requested “[c]opies of the official examination results notices issued by the Civil Service Unit for all candidates who participated in the 2023 and 2024 Police Captain Promotional exams.” Petition to assess fees – Agencies A fee shall not 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. 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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. 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. SPR25/0149 Page 2 January 22, 2025 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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. 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 under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition, the Division seeks to assess “[a] fee for the segregating and redacting of records.” In support of its request, the Division provides the following information: [I]n order to respond to this request, approximately 120 score notices will have to be individually downloaded from the system. . . . [I]n addition, each notice will have to have the candidate’s individual score (exemption (c)) and their home address (exemption (o)) (along with any other personal information on the notice) redacted. In accordance with subsection (c) – exams scores are evaluative information about a candidate and as such are a personnel record and not subject to disclosure and subsection (o) home addresses. In an email to this Division on January 16, 2025, Mr. Brown objects to the Division’s petition to assess fees, arguing “…[o]bjective examination results are not ‘evaluative’ or

Michele M. Heffernan, Esq. SPR25/0149 Page 3 January 22, 2025 ‘personnel’ records. The requested records directly impact the transparency of promotional processes within public service. The public has a legitimate interest in understanding how eligibility lists are formed and ensuring accountability in government hiring and promotion. Objective scores derived from a standardized process do not implicate privacy concerns or affect the government’s employer-employee relationship. The burden of proof rests with the HRD to demonstrate, with specificity, why the exemption applies. My request explicitly excluded sensitive personal information, such as social security numbers, home addresses, and personal contact details. Providing score notices not tied to individual names or other identifiers, is not protected under Exemption (c) and would fully address any residual privacy concerns while ensuring compliance with the Public Records Law.” Based on the information provided in its fee 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 segregation or redaction. 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 redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Division to provide records in an efficient and affordable manner. Please note, Mr. Brown 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: David Brown