Gardner v. Brockton, City of - Public Schools (SPR 20251487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1487 Bou Lim Records Access Officer Brockton Public Schools 43 Crescent Street Brockton, MA 02301 Dear Mr. Lim: I have received the petition of Mr. Gardner appealing the response of the Brockton Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 9, 2025, Mr. Gardner requested: …the following records related to the hiring process for school police officers within Brockton Public Schools over the past two years: [1] Names of candidates who took the hiring test for school police officers. [2] Test scores for each candidate. [3] Any records or communications related to the test results and subsequent hiring decisions, including but not limited to dates, emails, memos, or other materials that discuss the evaluation process, scoring criteria, or candidate selection. Specifically, I am requesting to verify whether [an identified individual] took the hiring test, and if so, his test results, including his name, score, and any associated records. The School responded on May 19, 2025. Unsatisfied with the School’s response, Mr. Gardner petitioned this office and this appeal, SPR25/1487, 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 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

Bou Lim SPR25/1487 Page 2 June 10, 2025 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. 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 School’s May 19th Response In its May 19, 2025 response, the School cited Exemption (c) of the Public Records Law to withhold the responsive records. Current Appeal In his appeal petition, Mr. Gardner argues, “[c]onfirmation of whether [an identified individual participated in a publicly funded, competitive hiring process for a taxpayer-funded law enforcement position is not privileged personnel information. Participation in a public hiring process—particularly for a law enforcement role—does not fall within the narrow scope of ‘intimate details of a highly personal nature’ that the privacy exemption protects… public interest in disclosure outweighs any privacy concerns.” 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 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.

Bou Lim SPR25/1487 Page 3 June 10, 2025 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). 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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. In its May 19, 2025 response, the School states: Your request specifically seeks materials from employment applications for school policy officers, which are of a personal nature and relate to specifically named individuals, and which fall within the categories of information useful in making employment decisions that have been listed by courts as constituting personnel material that is absolutely exempt from disclosure... As such, they are being withheld from disclosure under the personnel clause of Exemption (c). In addition, the requested employment application information is also exempt under the privacy clause of M.G.L. c.4, §7(26)(c)… Employment applications, test results, and the other related materials you requested contain information of a highly personal nature, would result in personal embarrassment to an individual of normal sensibilities if released, and are not available from other public sources. In particular, applicants have a substantial interest in maintaining their privacy during the school police hiring process to avoid conflicts in any current

Bou Lim SPR25/1487 Page 4 June 10, 2025 employment and potential embarrassment if not ultimately hired. Employees who are hired may have to satisfy a variety of minimum hiring criteria and their test scores may be evaluated as part of that process, but their actual scores are private. Any public interest these materials does not substantially outweigh the privacy interests. Based on the School’s response, I find the School has not met its burden to withhold the responsive records in their entirety under Exemption (c) of the Public Records Law. In particular, the School has not identified which specific records it is withholding, nor has it provided specific reasons for the exemption’s applicability as required by G. L. c. 66, § 10(b)(iv). Although it appears from the School’s response that it possesses the requested test scores and names of candidates, it must clarify whether it is withholding “any records or communications related to the test results and subsequent hiring decisions, including but not limited to dates, emails, memos, or other materials that discuss the evaluation process, scoring criteria, or candidate selection.” To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the School must identify the records it withheld under Exemption (c). Further, although the School indicates that the records constitute personnel information, it is unclear how all of the records, in their entirety, constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally unclear how the withheld records, in their entirety, contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Gardner with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Mr. Gardner may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Bou Lim SPR25/1487 Page 5 June 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Mr. Gardner