David Schwartz v. University of Massachusetts - President's Office (SPR 20180687)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24,20 18 SPR181687 Christine M. Wilda University of Massachusetts - Amherst Office of the Chancellor 374 Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of David Schwartz on behalf of Jeremy Beckham, both of People for the Ethical Treatment of Animals, Inc., appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 6,2017, Mr. Beckham requested the following records from January 1, 2014 to present: "* All videographic records related to experiments carried out by UMass-Amherst faculty' member, . . . (Department of Human Physiology) and funded by National Institutes of Health grant R240D011180 ("Self-injurious behavior and primate well- being . . . .") * For the same time period, I also request any and all inventories, indexes, or catalogues of photographic and videographic records produced at and maintained by UMass-Amherst related to and/or depicting the use of primates in experiments or research, including videos produced by its faculty and staff." In a response dated November 17,2017, the University provided a fee estimate. After receipt of payment, the University provided another response on February 12,2018 , which included portions of the responsive records. However, the University denied access to others pursuant to Exemptions (c), (n), and (u) of the Public Records Law. G. L. c. 4, 5 7(26)(c), (n), (u). Unsatisfied with the University's response, Mr. Schwartz petitioned this office and this appeal, SPR181687, was opened as a result. 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 Page 2 May 24,2018 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, fj 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, fj 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 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, 5 lO(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 February 1 2 r~esp~on se In its February 12, 20 18 response, the University indicated that it would not be providing "video graphic records for research currently being conducted which constitutes trade secrets or other proprietary information of the [University] nor records that contain images of individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy and jeopardize public safety." As such, the University claims it withheld responsive records pursuant to Exemptions (c), (n), and (u) of the Public Records Law. Second clause of Exemption (c) The University claimed it withheld responsive records pursuant to Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of: 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 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second

Christine M. Wilda Page 3 May 24,20 18 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 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. 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 a. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292. Although the University claims it withheld responsive records because they "contain images of individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy . . .," it is unclear how disclosure of the withheld records would result in personal embarrassment to an individual of normal sensibilities. Also, the University has not demonstrated how the withheld portions are intimate details of a highly personal nature, nor addressed whether this information is available from other sources. PETA, 477 Mass. at 292. In addition, the University must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See Id. at 291-92. In light of the PETA analysis, I find the University has not met its burden to establish that Exemption (c) applies to the withheld records. Exemption (n) The University indicated that it withheld responsive records pursuant to Exemption (n) of the Public Records Law. Exemption (n) permits the withholding of:

Christine M. Wilda Page 4 May 24,20 18 records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' PETA, 477 Mass. at 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the Id. proposition that disclosure of the record is 'likely to jeopardize public safety."' at 289-90. The PETA decision further provides that "[blecause the records custodian must exercise 'reasonable judgment' in malting that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's Id. determination given the context of the particular case." The University asserted that Exemption (n) applies to withhold the responsive records because disclosure would "jeopardize public safety." However, the University has failed to demonstrate how the records at issue are similar to the records listed as examples in the above statute. Neither did the University provide any concrete examples of how the public's safety would be jeopardized by releasing the requested records. As such, I find the University has failed to meet its burden in proving with specificity how the requested records may be withheld under Exemption (n). Exemption (u) The University indicated that it withheld responsive records pursuant to Exemption (n) of the Public Records Law. Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns

Christine M. Wilda Page 5 May 24,20 18 Although the University claims it denied access to "video graphic records for research currently being conducted [because they constitute] trade secrets or other proprietary information of the [University]," I find that the University has not met its burden to establish how the withheld records constitute "trade secrets" or "proprietary information." Further, it is unclear whether segregable portions of the withheld records could be provided to Mr. Schwartz. Pursuant to the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the University has not met its burden to explain how an Exemption applies to the requested records, the requested records may not be withheld. Accordingly, the University is ordered to review the records, redact where necessary, and provide Mr. Schwartz with responsive records, 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 this response to this office at pre@,sec.state.ma.us. The University may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray V Supervisor of Records cc: David Schwartz