Keavin Duffy v. Human Resources Division (SPR 20250650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2025 SPR25/0650 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 Keavin Duffy 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 February 25, 2025, Mr. Duffy requested, “a copy of all records related to my job applications submitted from January 2024 to [p]resent within the Massachusetts state hiring system (MassCareers). Specifically roles I interviewed for, I request”: [1] Application evaluation records for all jobs I applied for, including any formally documented review notes and scoring criteria. [2] Any officially recorded reasons for non-selection in the hiring process. [3] Any background check, employment verification, or vetting materials conducted directly by the state as part of my application process. If these were conducted by a third-party vendor, please provide the name of the vendor so I can request records directly. [4] Confirmation of whether any background check or vetting materials were used in the decision-making process or in verifying my qualifications. The Division provided a response on February 26, 2025. Unsatisfied with the response, Mr. Duffy modified his request on March 3, 2025, and stated that “I am modifying my request to a yes/no format, to alleviate the burden on the state to provide sensitive or internal deliberative materials through this medium…. Please respond with ‘yes’ if the statement applies to any of the positions I applied for or interviewed for, or ‘no’ if it applies to none. [1] Aside from the documents I personally provided (Resume, Cover Letter, Letter of Recommendation, and my responses to pre-screening and interview questions), were any additional materials reviewed as part of my application evaluation? (Yes/No) 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. SPR25/0650 Page 2 March 19, 2025 [2] Are there any legacy documents associated with my state personnel file? (Yes/No) [3] If yes, are any of the legacy documents from a public record reporting database? (Yes/No) [4] Was any medical or disability-related information considered in my application review? (Yes/No) [5] Was a LexisNexis public record report formally used in my application evaluation? (Yes/No) [6] Was any function of LexisNexis informally used in my application evaluation by any evaluator or hiring decision-maker? (Yes/No) [7] Was any public record reporting database formally or informally used in my application evaluation? (Yes/No) [8] Could information from a public records report play a role in the formal hiring process? (Yes/No) [9] Could Information from a public records report play an informal role in the hiring process? (Yes/No)[.] Without receiving a response, Mr. Duffy petitioned this office and this appeal, SPR25/0650, was opened as a result. Status of Requestor In his appeal petition, Mr. Duffy states that “my request pertains only to records specifically related to my own application and hiring evaluation.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Duffy’s status will play a role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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). 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. Att’y 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

Michele Heffernan, Esq. SPR25/0650 Page 3 March 19, 2025 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 26th Response In its February 26, 2025 response, the Division stated: Under the public records law of the Commonwealth, personnel information is absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.… As such, the records you requested are exempt from disclosure under G. L. c. 4, § 7, Twenty-sixth (c). We were unable to identify any other state or municipal agency that may have possession, custody or control of the requested records. We do not seek an extension of time to respond to your request, and are not charging any fees for this request. Current Appeal In his appeal petition, Mr. Duffy reiterates that he would like the Division to answer his yes or no questions instead of providing the responsive records. Mr. Duffy is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. Duffy submitted to the Division a list of questions, I find the Division has no duty under the Public Records Law to answer such questions. Conclusion Accordingly, I will now consider this administrative appeal closed.

Michele Heffernan, Esq. SPR25/0650 Page 4 March 19, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Keavin Duffy