Maurice J. Ornelas v. Bridgewater State University (SPR 20252591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2025 SPR25/2591 Laura Machado Records Access Officer Office of the President Bridgewater State University 131 Summer Street Bridgewater, MA 02325 Dear Ms. Machado: I have received the petition of Dr. Maurice J. Ornelas appealing the response of Bridgewater State University (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2025, Dr. Ornelas requested the following records “related to the recent hiring process for [a specific] position at Bridgewater State University:” [1] The original job posting and full job description[;] [2] The evaluation criteria, scoring rubric, or selection matrix used by the search committee[;] [3] Completed evaluation forms, score sheets, or rankings compiled by committee members for this position[;] [4] Internal communications or memoranda reflecting the final hiring decision and selection rationale[;] [5] The list of standard interview questions used during candidate interviews[;] [6] Any publicly releasable documents reflecting the qualifications of the candidate selected for the position . . .[;] [7] Any documents, notes, or internal communications generated during the hiring process that specifically reference [an identified individual] . . . as a candidate for this position. Previous Appeal This request was the subject of a previous appeal. See SPR25/2541 Determination of the Supervisor of Records (September 9, 2025). In my September 9th determination, I closed SPR25/2541 in light of the University providing a written response to Dr. Ornelas on August 29, 2025. Unsatisfied with the University’s response, Dr. Ornelas petitioned this office, and this 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

Laura Machado SPR25/2591 Page 2 September 12, 2025 appeal, SPR25/2591, 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). 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 University’s August 29th Response In its August 29, 2025 response, the University provided two pages of records responsive to Item 1 of the request. The University additionally cited Exemptions (c) and (l) of the Public Records Law to withhold records responsive to Items 2 and 5 of the request, in their entirety, and further claimed Exemptions (c) and (p) to withhold records responsive to Items 3, 4, 6, and 7, in their entirety. Current Appeal Upon review of the September 2, 2025 appeal petition, it appears Dr. Ornelas only objects to the University’s response to Items 2 and 5 of his request. He states, “I respectfully request [review] of BSU’s blanket denial of Item 2 . . . and Item 5 . . . in their entirety[,]” and further contends the following: Evaluation Criteria / Scoring Rubric (Item 2)[:] The scoring rubric or selection matrix represents a standardized procedural tool used to evaluate all applicants. I am not requesting individual score sheets or identifiable candidate feedback, but rather the general structure used to guide hiring decisions. . . . Standard Interview Questions (Item 5)[:] Bridgewater State University cited Exemption (l), arguing that interview questions are analogous to test materials subject to reuse. However, interview questions, particularly those on open-ended

Laura Machado SPR25/2591 Page 3 September 12, 2025 discussion of qualifications, are qualitatively different from scored, high-stakes exams. 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). While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. In its response under Exemption (c), the University stated the following regarding Items 2 and 5 of the request: Exempting “personnel information” protects the government’s ability to function effectively as an employer. Wakefield Teacher’s Ass’n. v. Sch. Comm. of Wakefield, 431 Mass. 792, 802 (2000). Personnel information that is useful in making employment decisions is sufficiently personal to be exempt under exemption (c). Id. at 798. Evaluative materials are of a particularly personal nature. Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983). Here, . . . the documents you have numbered as items 2. . . [and] 5 . . . contain evaluative information related to the employment search in question. These materials are

Laura Machado SPR25/2591 Page 4 September 12, 2025 necessarily personal in nature and affect our ability to successfully carry out an employment search process; and are therefore exempt from disclosure under the PRL. . . . We have determined that there is an additional basis for withholding items 2 and 5, evaluation materials and scoring rubrics, etc.; and standard interview questions: these materials are subject to re-use in future employment searches. Their disclosure would both compromise the government’s ability to function as an employer, and also give advantage to future applicants, by releasing such materials into the public domain. Such materials are therefore exempt from release under exemption (c) of the PRL. Based on the University’s response, it is unclear how the records responsive to Items 2 and 5 of the request fall within the core categories of personnel information useful in making employment decisions regarding an employee, and are exempt under Exemption (c). See Wakefield, 431 Mass. at 798. Consequently, I find that the University has not met its burden to withhold the records responsive to Items 2 and 5 under Exemption (c). The University must clarify. Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). In its response, the University asserted that the records responsive to Items 2 and 5 of the request “are . . . analogous to materials exempt from release under exemption (l), which exempts test questions and scoring sheets which are subject to reuse.” Upon review of the University’s response, it is unclear how the “[t]he evaluation criteria, scoring rubric, or selection matrix used by the search committee” and “[t]he . . . standard interview questions used during candidate interviews” constitutes the type of material contemplated under Exemption (l). Additionally, it is unclear whether the University is using the

Laura Machado SPR25/2591 Page 5 September 12, 2025 records responsive to Items 2 and 5 currently or for future examinations by the University. The University must clarify these matters. Burden of Specificity, Identification of the Records The University is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, it is unclear how the records responsive to Items 2 and 5 of the request can be withheld in their entirety. 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 nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, it is unclear from the University’s response which specific records the University intends to withhold. The University must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (c) and (l). See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the University is ordered to provide Dr. Ornelas with a response to Items 2 and 5 of his 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. Dr. Ornelas may appeal the substantive nature of the University’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dr. Maurice J. Ornelas