Maurice J. Ornelas v. Bridgewater State University (SPR 20252761)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2025 SPR25/2761 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 Appeals This request was the subject of previous appeals. See SPR25/2541 Determination of the Supervisor of Records (September 9, 2025) and SPR25/2591 Determination of the Supervisor of Records (September 12, 2025). In my September 12th determination, I ordered the University to clarify its claims for withholding records responsive to Items 2 and 5 of the request under 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 SPR25/2761 Page 2 October 2, 2025 Exemptions (c) and (l) of the Public Records Law. I also found that the University must identify the records, categories of records, or portions of records responsive to Items 2 and 5 that it intends to withhold under Exemptions (c) and (l). The University provided a response on September 18, 2025. Unsatisfied with the University’s response, Dr. Ornelas petitioned this office, and this appeal, SPR25/2761, 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 September 18th Response In its September 18, 2025 response, the University provided the following clarification regarding the identity of records responsive to Item 2 of the request. Further, the University provided additional information regarding the identity of records responsive to Item 5 that it intends to withhold under Exemptions (c) and (l), as well as additional information regarding its claims for withholding records responsive to Item 5 under Exemptions (c) and (l): Firstly, regarding the Supervisor’s directive to identify more specifically those records that the University has in its possession, and which of those records it intends to withhold, we have identified the following records in the University’s possession that are potentially responsive to your request:  The University has in its possession certain individual score sheets used in the position search that could be described as “the University’s Evaluation Criteria/Scoring Rubric” (Item 2).  The University also possesses a list of interview questions that were used in the position search (Item 5). These interview questions are contained on

Laura Machado SPR25/2761 Page 3 October 2, 2025 the same “score sheets” as requested under Item 2, above. Item 2: the University’s Evaluation Criteria/Scoring Rubric In regard to Item 2, the University notes that, according to the . . . [previous appeal], you [stated] . . . as follows: “I am not requesting the individual score sheets or identifiable candidate feedback, but rather the general structure used to guide hiring decisions….” In view of this more circumscribed request, we must respond to you by stating that the University has in its possession only “individual score sheets” and we are aware of no documents in the University’s possession providing “the general structure used to guide hiring decisions” concerning this particular position search. Accordingly, the University has determined, in light of the clarifications you have provided, that there are no records in the University’s possession that are responsive to your request. . . . Item 5: the University’s Standard Interview Questions Regarding Item 5, you contend [in the previous appeal] that “. . . interview questions, particularly those on open-ended discussion of qualifications, are qualitatively different from scored, high-stakes exams.” The University takes issue with your assertion that its list of interview questions is “qualitatively different from scored, high-stakes exams,” and therefore asserts the following arguments:  The interview questions are listed on the University’s score sheets and are thus part-and-parcel of the request to receive those documents identified as Item 2. Replicating the interview questions alone, by removing them from the score sheets, would require the creation of a separate, new document.  Each interview question is subject to a scoring system recording the interviewees’ responses and the interviewers’ score based on those responses. Accordingly, the interview questions and scoring sheets are akin to exam responses in other contexts, such as employment exams, school exams, etc.  It would cause the University substantial difficulty as a public employer to have to re-create questions that are released and enter the public domain. . . . The interview questions are proprietary and are subject to re-use in future job searches, including job searches for the position in question. . . . It would unduly advantage future candidates to possess actual interview questions in advance of interviewing; or to obtain insight into the University’s deliberative process for appointments to this position; or like positions. . . . Consequently, the requested documents here are subject to withholding under PRL exemption (c) because their release would unduly compromise the University’s ability to function as a public employer; or, alternatively, because

Laura Machado SPR25/2761 Page 4 October 2, 2025 they are akin to the “scoring sheets and other materials used to develop, administer or score a test, examination, or assessment instrument” under exemption (l). . . . Therefore, in regard to your public records request, the University has determined that, for Item 2, it has no records that are responsive to your request; and for Item 5, the requested documents are entirely exempt from release under exemption (c) of the PRL; or, alternatively, under exemption (l). Current Appeal In his September 19, 2025 appeal petition, Dr. Ornelas objects to the University’s response to Items 2 and 5 of his request and states the following: Item 2 – Evaluation Criteria / Scoring Rubric[:] BSU states that it possesses only “individual score sheets” that include the evaluation criteria but claims that no standalone rubric exists and therefore “no responsive records” are available. This reasoning is misleading. . . . Because the score sheets contain the evaluation criteria, BSU is obligated to release those criteria in redacted or segregated form. . . . Item 5 – Interview Questions[:] BSU acknowledges it possesses a list of interview questions used in the hiring process but once again applies a blanket denial under Exemptions (c) and (l). . . . BSU has not attempted to provide even a summary, topic list, or redacted version of these questions. . . . 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). Upon review of the University’s response, I find that where the University has indicated that “[t]he interview questions are proprietary and are subject to re-use in future job searches, including job searches for the position in question[,]” the University may permissibly withhold records responsive to Item 5 of the request from disclosure under Exemption (l) of the Public

Laura Machado SPR25/2761 Page 5 October 2, 2025 Records Law. Consequently, I decline to opine on the applicability of Exemption (c) to withhold records responsive to Item 5. Records in Existence 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). 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the University’s response, in conjunction with its previous response, it is unclear whether the University possesses records responsive to Item 2 of the request. Specifically, where Dr. Ornelas clarified that he is, “not requesting the individual score sheets or identifiable candidate feedback, but rather the general structure used to guide hiring decisions” and the University has indicated in its September 18, 2025 response to Item 5 that, [e]ach interview question is subject to a scoring system[,]” it is unclear whether the University possesses records responsive to Item 2 of the request for “[t]he evaluation criteria, scoring rubric, or selection matrix used by the search committee[.]” The University must clarify this matter. Conclusion Accordingly, the University is ordered to provide Dr. Ornelas with a response to Item 2 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. Sincerely, Manza Arthur Supervisor of Records cc: Dr. Maurice J. Ornelas