Dusty Christensen v. University of Massachusetts - President's Office (SPR 20181010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23,2018 SPR18/1010 Christine M. Wilda University of Massachusetts - Amherst 374 Whitmore Building 18 1 Presidents Drive Amherst, MA 01003 Dear Ms. 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, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on January 22, 2018, Mr. Christensen requested the following records: 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 20 16 and 20 17 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 2017 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 Page 2 July 23,2018 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 20 16 and 20 17 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 20 16 and 20 17 calendar years. Previous appeal This request was the subject of a previous appeal. See SPR181361 Determination of the Supervisor of Records (March 30, 201 8). In my March 3othD etermination, finding that UMass did not meet its burden to withhold responsive records in their entirety under Exemption (c) of the Public Records Law, I ordered UMass to provide Mr. Christensen with the requested records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the March 3othd etermination, UMass provided a response on April 1 1,2018 denying access to records responsive to requests 1-3, pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). UMass claims it does not possess records responsive to requests 4-7. Unsatisfied with UMass's response, Mr. Christensen petitioned this office and this appeal, SPR18110 10, was opened as a result. Tlze 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, 5 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, $ 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. UMass 's April 11 t" response In its April 1 1,2018 response, UMass asserts that the records responsive to requests 1-3 are exempt from disclosure under Exemptions (a) and (c) of the Public Records Law.

Christine M. Wilda Page 3 July 23,201 8 Exemption (a) UMass claims the records are exempt under the Fair Information Practices Act (FIPA), G. L. c. 66A, §2(c), as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are : specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1979); Ottaway News~apersI,n c. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Fair Information Practices Act (FIPA) FIPA, which imposes restrictions on the dissemination of "personal data," reads in pertinent part that the holder maintaining personal data shall: not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought if the data subject is entitled to access under clause (i). In support of its position to withhold records, UMass asserts that "any responsive information falls squarely within the definition of 'Personal Data' under the FIPA, but for the exemption for public records." UMass further claims "[tlo the extent that such information

Christine M. Wilda Page 4 July 23,2018 exists, [UMass], as the holder, does not have approval from the data subject to release their Personal Data as required under FIPA." UMass is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att~G en. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holvolte Hosp., 398 Mass. 372,379 (1986) (stating that "determining whether tlle record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, 5 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Exemption (c) UMass also states 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 First clause of Exemption (c) -personnel 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 Id. identifiable individual and is of a "personal nature." 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., 43 1 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. 11-011 84-A (June 14,2013).

Christine M. Wilda Page 5 July 23,20 18 Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in laowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Cornrn. of Westport, 401 Mass. 306, 309 (1987). Under the first clause of Exemption (c), UMass claims the records are exempt as personnel records because the information sought "is of a 'personal nature' as it relates to an identifiable individual, and requests information regarding internal investigation(s) and determination(s) regarding such individual." UMass contends that the records fall within the definition of "'personnel file or information' [because] it relates to a particular employee's work, conduct, employment, and discipline; categories of information which constitute core components of the employee's personnel file, and are, at a bare minimum, useful in making employment decisions regarding an employee." UMass cites the Wakefield and Worcester decisions to support its position. Second clause of exemption (c) -privacy 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 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 Awic. 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 Id. disputes and reputation. at 292 n. 13; see also Doe v. Repistrar of Motor Vehicles, 26 Mass. App. Ct. 41 5,427 (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

Christine M. Wilda Page 6 July 23,2018 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. UMass asserts that the records are exempt under the second clause of Exemption (c), because "the mere existence of such information is something the average person would not share with the public; disclosure of the same, to the extent it exists, would result in personal embarrassment to an individual of normal sensibilities; and such information is not available from other sou~rces."U Mass further asserts that ". . . based on the nature of the information alone, mere disclosure of its existence would likely have a negative effect on the identified individual's reputation . . ." With respect to the balancing test set out under the second clause of Exemption (c), UMass asserts that "the individual privacy interest . . . outweighs any public interest in disclosure, paiticularly given the additional public policy interest weighing against disclosure; that is, to protect and maintain the government's ability to function effectively as an employer." UMass posits that "absent the ability to assure confidentiality to those who voluntarily participate in investigations such as these, the government's ability to function effectively as an employer would be destroyed." UMass asserts that ". . . requiring disclosure of the information [in requests 1-31 (including routine complaints, investigations, reports, determinations and discipline decisions. . .) would effectively prevent [UMass] from performing its necessary employer functions." UMass contends that "[d]isclosure of such records would discourage voluntary employee participation and candor. Without voluntary employee participation, [UMass's] ability to conduct investigations would effectively, be eviscerated, as every investigation would be subject to public disclosure. This resultant absence of confidentiality would so prejudice the University's ability to function effectively as an employer that such disclosure would not in the public interest." Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, $ 1O (b)(iv) (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 also Globe Newspaper Co. v. Police Comrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Because UMass did not identify what records it has in its custody that are responsive to Mr. Christensen's request, I find that UMass did not comply with G. L. c. 66, 5 lO(b)(iv). UMass is again reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to Id.; withhold. 950 C.M.R. 32.06(3)(~)(4)T. herefore, UMass must identify the type of record(s) it has in its possession that it withheld from disclosure.

Christine M. Wilda Page 7 July 23,2018 With respect to the first clause of Exemption (c), UMass is advised that a personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located see physically in an individual employee's personnel file." Wakefield, 43 1 Mass. at 797 n. 13; also Globe Newspaper Co., 388 Mass. at 435 (not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection); Worcester, 58 Mass. App. Ct. at 5 (personnel file or information in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository). Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Worcester, 58 Mass. App. Ct. at 5-6. Consequently, while it appears that portions of the requested records may potentially fall under the first clause of Exemption (c), it remains unclear how all of the requested records in UMass's custody each constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the first clause of Exemption (c). See Id. 58 Mass. App. Ct. at 5; Wakefield, 43 1 Mass. at 798. Similarly, although UMass claims that "based on the nature of the information alone, mere disclosure of its existence would likely have a negative effect on the identified individual's reputation . . .," it is unclear why records must be withheld in their entirety. & 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 non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 lO(a). UMass must explain why any non- exempt segregable portion cannot be provided. Additional responsive records With respect to requests 4-7, UMass indicates that following Mr. Christensen's January 25,2018 email, providing additional key words to narrow the records to a particular subject matter and reduce non-responsive records, UMass indicates that after a search of those key words, it was unable to locate records responsive to those requests. 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, tj 1O (a)(ii). 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)(b). In his petition for appeal, Mr. Christensen claims, "[s]ince [UMass] has effectively confirmed that the complaint-related documents responsive to requests 1-3 exist, it would seem highly likely that the communications relating to them took place over email, as requested in requests 4-7." Based on UMass's response, coupled with Mr. Christensen's appeal, it is unclear whether UMass possesses additional responsive records. UMass is advised that if it is unable to identify the records sought in Mr. Christensen's requests, it is under a duty to assist him in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). As such, UMass and Mr. Christensen are

Christine M. Wilda Page 8 July 23,2018 encouraged to communicate further to enable UMass to provide the requested public records sought. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that UMass did not meet its burden to explain how an exemption applies to withhold the records in their entirety, accordingly UMass is ordered to review the responsive records, redact where necessary and provide Mr. Christensen with requested records, 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. Sincerely, c Rebecca S. Murray Supervisor of Records cc: Dusty Christensen