Dusty Christensen v. University of Massachusetts - President's Office (SPR 20180361)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 30, 2018 SPRlS/361 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts -Amherst 340 Whitmore Building Amherst, MA O1 003 Dear Associate Chancellor Wilda: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the University of Massachusetts Amherst (UMass) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Christensen requested a copy of: 1. A sexual misconduct complaint filed with UMass Office of Equal Opportunity & Diversity (EO & D) by an identified person or persons against another identified former employee; 2. Any documents from the Title IX case against the identified former employee, including: (a) the investigation report; (b) final written arguments from the identified former employee and the identified accusers during the deliberations and the decision step of the EO & D; (c ) the panel's report detailing its determinations and disciplinary recommendations in that case, including the executive director's commentary, the Vice Chancellor or Provost's notification of their disciplinary determination in the case of the identified former employee; 3. Any other sexual misconduct or Title IX complaints and disciplinary determinations made against the identified former employee in the past; 4. All emails and attachments sent by or received by an identified person or any other of the identified person's email addresses to any email containing the name of the identified former employee during the 2016 and 2017 calendar years; 5. Any email responses made by an identified person and the identified person's email addresses or any other email addresses used by the identified person which contain the name of the identified former employee during the 2016 and 201 7 calendar years; 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

Christine M. Wilda SPR18/361 Page 2 March 30, 2018 6. All emails, including attachments, sent by and received by an identified person using identified email addresses or any other email addresses and containing the name of the identified former employee during the 2016 and 2017 calendar years; and 7. Any email responses made by an identified person using identified email addresses or any other email address containing the name of the identified former employee during the 2016 and 2017 calendar years. In a January 25, 2018 email, UMass asked if Mr. Christensen would provide UMass with additional key words to be used in the search for the email records in request numbers 4-7, in order to narrow the records to the particular subject matter and reduce non-responsive records. After Mr. Christensen provided additional key words, on January 26th UMass informed Mr. Christensen that they would work to get the information to him as soon as they could. However, in a February 6th email response, UMass informed Mr. Christensen that UMass will not provide the requested records, denying the request in its entirety pursuant to Exemption (c) of the Public Records Law. Mr. Christensen petitioned the Supervisor of Records, and this appeal was opened. 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, § 1O (b )(iv) (written response must "identify any records, categories of records or p01iions 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 ... "); 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). UMass's February 6th response In its February 6th response, UMass indicates that "[i]t will not provide the records requested as they contain materials or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy or constitute personnel records. We are withholding those materials under exemption (c)." To accompany this denial, you provided Mr. Christensen with a copy of select pages from the "Massachusetts Guide to the Public Records Law" regarding Exemption (c) of the Public Records Law.

Christine M. Wilda SPR18/361 Page 3 March 30, 2018 Exemption (c) Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. 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. 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 the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The. courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). UMass's February 6th response does not specifically explain how the requested records fall within the core categories of personnel file information described in Wakefield, and how these records were useful in making employment decisions regarding an employee, and is exempt under Exemption (c). See Wakefield, 431 Mass. at 798. Given that UMass has not demonstrated that the records, in their entirety, are personnel file information that may be withheld under the first clause of Exemption ( c ), I find that UMass has not met its burden of specificity in claiming Exemption ( c) of the Public Records Law and withholding the records in their entirety. Second clause Analysis under the second clause of 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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

Christine M. Wilda SPR18/361 Page4 March 30, 2018 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 the second clause of 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 clause 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. 111 Based on a review ofUMass's February 6 response, it is unclear whether UMass is withholding any or all of the records under the second clause of Exemption (c). I find that UMass has not met its burden of specificity in demonstrating that the public's interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient matter does not outweigh the privacy interest of the subjects of the information. Burden of specificity; duty to segregate UMass's response did not meet the requirements in providing a response, and in withholding responsive records. Under the Public Records Law 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 ... " See G. L. c. 66, § lO(b)(iv). UMass denied Mr. Christensen's request in its entirety under Exemption ( c) without providing any support for withholding the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. UMass did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). UMass must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a ). It is my understanding that a Public Records Division attorney contacted UMass regarding this appeal.

Christine M. Wilda SPR18/361 Page 5 March 30, 2018 Order Given that UMass did not meet its statutory burden of providing specific reasons for the withholding, the requested records may not be withheld. Accordingly, UMass is hereby ordered to provide Mr. Christensen with the requested records, 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 this response to this office at pre@sec.state.ma.us. UMass may request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Dusty Christensen