Michelle Loubert v. Westfield State University (SPR 20170178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 21, 2017 SPR17/178 Tricia M. Oliver Records Access Officer Westfield State University Office of the President - The Horace Mann Center 333 Western Avenue, P.O. Box 1630 Westfield, MA 01086-1630 Dear Ms. Oliver: I have received the petition of Michelle Loubert appealing the response of Westfield State University (University) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 17, 2017, Ms. Loubert requested a copy of: 1. All materials, including emails, notes and documentation, reviewed by Ms. Bischoff during her investigation of the complaint filed by Ms. Loubert on December 25, 2016, and 2. The procedure used in interviewing the parties involved in the complaint. No responsive records In its February 2nd response the University informed Ms. Loubert that it does not have any record responsive to her request for the "procedure used in interviewing the parties involved in her complaint." (Request Number 2). Under the Public Records Law, the University is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). The University denied Ms. Loubert's request for some of the records responsive to her request for documents and materials reviewed in the course of the investigation into the complaint Ms. Loubert filed pursuant to Exemption (f) of the Public Records Law. Ms. Loubert appealed. See 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

Tricia M. Oliver SPRl 7/178 Page 2 February 21, 2017 Status of the requester under the Public Records Law It is my understanding that Ms. Loubert was provided with a copy of her personnel file and that some of the records already reviewed as part of the investigation have been provided to Ms. Loubert under G. L. c. 149, § 52C. Chapter 149 provides access to particular records based on the subjects' rights as an employee or former employee. However, it is important for Ms. Loubert to understand that Ms. Loubert's status or interests in the underlying matter being investigated by the University does not afford her any greater right of access to the requested information under the Public Records Law. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Loubert' s status will play no role in a determination as to whether the records should be disclosed to the public. 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, § lOA(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 town 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, § 1 O(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information.

Tricia M. Oliver SPRl 7/178 Page 3 February 21, 2017 Exemption (I) In the February 2nd response, the University explained that the materials that have not been reviewed in connection with the active and on-going investigation based on Ms. Loubert's complaint have been withheld pursuant to Exemption (f) of the Public Records Law. Exemption (f), the so-called investigatory exemption, allows investigatory officials to withhold: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(£). This exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 4 3 8. In a February 1 i 11 discussion with you and Olivia Bischoff, Risk Manager for the University, an attorney on my staff was informed that the University is still in the process of investigating the complaint filed by Ms. Loubert. Ms. Bischoff has not finished interviewing personnel and gathering documents to render a decision on the underlying matter. It is my understanding that when the investigation is completed, Ms. Loubert will receive documentation of the results of the investigation. At the conclusion of the University's investigation, the responsive records will be reviewed and the records and content within records not subject to exemptions in the Public Records Law will be provided. Whereas, the investigation is still on going, the University may withhold any records that are the subject of the investigation pursuant to Exemption (f) of the Public Records Law.

Tricia M. Oliver SPRl 7/178 Page 4 February 21, 2017 Accordingly, whereas the University has met its burden of supporting its Exemption (f) claim to withhold responsive records during the process of the active and on-going investigation, I will consider this appeal closed. It is my understanding that when the investigation has concluded, the University will notify Ms. Loubert of its findings in writing. Ms. Loubert may appeal the substantive nature of any response received at the conclusion of the investigation regarding access under the Public Records Law within ninety (90) days of receipt of the response. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michelle Loubert, Olivia Bischoff