Dusty Christensen v. University of Massachusetts - President's Office (SPR 20181177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 17, 2018 SPRlS/1177 Christine M. Wilda University of Massachusetts -Amherst 3 7 4 Whitmore Building 181 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, § lOA; 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 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 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 SPR18/l l 77 Page 2 August 17, 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 201 7 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. Previous appeals This request was the subject of previous appeals. See SPR18/361 Determination of the Supervisor of Records (March 30, 2018) and SPR18/1010 Determination of the Supervisor of Records (July 23, 2018) (March 30th and July 23rd determinations). In my July 23rd Determination, finding that UMass did not meet its burden to withhold responsive records in their entirety under Exemptions (a) and (c) of the Public Records Law, I ordered UMass to review the responsive records, redact where necessary and provide Mr. Christensen with requested records in a manner consistent with the order, the Public Records Law, and its Regulations. Following the July 23rd determination, UMass provided a response on August 6, 2018. Unsatisfied with UMass's response, Mr. Christensen petitioned this office and this appeal, SPRl 8/11 77, 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, § 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Christine M. Wilda SPR18/1177 Page 3 August 17, 2018 UMass's August 6th response In its August 6, 2018 response, UMass asserts " ... the University declines to produce the requested personnel records." Order In my July 23rd determination, UMass was directed to identify the records it has in its possession and explain how each of the records constitute one of the "core categories of personnel information," which may be properly withheld under the first clause of Exemption (c). UMass was further directed to explain how non-exempt segregable portions cannot be provided and clarify whether it has additional records responsive to requests 4-7 of Mr. Christensen's public records request. See July 23rd determination. Despite UMass's August 6th response, I find that UMass has not complied with my July 23rd determination. Accordingly, whereas UMass has not satisfied its statutory and regulatory obligation under the Public Records Law, UMass is ordered to provide Mr. Christensen with a response to the request, provided in a manner consistent with the Public Records Law, its Access Regulations, and the March 30th and July 23rd determinations 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. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen