David Brown v. Human Resources Division (SPR 20250520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0520 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 David Brown 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 January 8, 2025, Mr. Brown requested “… copies 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.” Prior Appeal and Petition This request was the subject of a prior appeal and fee petition. See SPR25/0149 Determination of the Supervisor of Records (January 22, 2025) and SPR25/0153 Determination of the Supervisor of Records (January 22, 2025). In my January 22nd determinations, I found that the Division had met its burden to assess a fee for the segregation and redaction of exempt material, and that I was unable to opine on the Division’s proposed redactions. The Division provided a response on February 5, 2025. Unsatisfied with the response, Mr. Brown petitioned this office and this appeal, SPR25/0520, was opened as a result. 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 Heffernan, Esq. SPR25/0520 Page 2 February 28, 2025 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 February 5th Response In its February 5, 2025 response, the Division provided Mr. Brown with responsive records, redacting the home addresses and examination scores of all examinees. In support of these redactions, the Division stated: Candidate scores are evaluative information of personal nature and are exempt from disclosure. HRD relies upon SPR99/502 (attached) where the Supervisor of Public Records recognized that “some information concerning a public employee’s educational and employment history, is of a sufficiently personal nature to be exempt from mandatory disclosure.” All individuals at issue are public employees who have taken a competitive exam. The scores of each candidate are compiled on an eligible list in rank order, meaning those that performed the best on the exam are highest on the list. The lists (without scores) are available to the public. As the Supervisor noted, “information contained in an educational transcript, such as specific courses taken, grade point average, test scores, and class rank, are exempt from mandatory disclosure.” citing Connolly v. Bromery, 15 Mass. App. Ct. 661, 662 (1983). It was recognized in this decision that civil service exam scores fall into these categories and are exempt from mandatory disclosure pursuant to exemption (c). Current Appeal In his February 21, 2025 petition to this office, Mr. Brown asserts that the redaction of examination scores is not permitted under the Public Records Law, and suggests alternative methods of disclosure that would preserve the privacy of the examinees. Exemption (c) Exemption (c) permits the withholding of: 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

Michele Heffernan, Esq. SPR25/0520 Page 3 February 28, 2025 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. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. Based on the Division’s response, and where the redacted examination scores constitute evaluative information useful in making employment decisions regarding a particular employee, I find the Division has met its burden to redact the responsive records under Exemption (c). See Globe Newspaper Co. v. Edward Flynn, Suffolk Superior No. 04-0571, at 7 (2004) (providing that exempt personnel information “… is collected in order to make employment decisions regarding a particular employee”). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Brown is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Michele Heffernan, Esq. SPR25/0520 Page 4 February 28, 2025 jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: David Brown