Dusty Christensen v. University of Massachusetts - President's Office (SPR 20181346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 12, 2018 SPRlS/1346 Christine M. Wilda University of Massachusetts -Amherst 3 74 Whitmore Building 181 Presidents Drive Amherst, MA O1 003 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/University) to a request for public records. G. L. c. 66, § IOA; 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 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 SPR18/1346 Page 2 September 12, 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); SPR18/1010 Determination of the Supervisor of Records (July 23, 2018); and SPR18/1177 Determination of the Supervisor of Records (August 17, 2018) (March 30t\ July 23rd, and August 1i h determinations). In my August 1i h determination, I found that UMass had not satisfied its statutory and regulatory obligation under the Public Records Law, because it failed to comply with my March 30th and July 23rd determinations. Accordingly, I ordered UMass 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 aforementioned determinations. Following the August 1i h determination, UMass provided a response on September 4, 2018. Unsatisfied with UMass's response, Mr. Christensen petitioned this office and this appeal, SPRl 8/1346, 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, § 1O (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 SPR18/1346 Page 3 September 12, 2018 UMass's September 41 request " In its September 4, 2018 response, UMass reiterates its August 6, 2018 response, which states that "on advice of counsel, the University declines to produce the requested personnel records." In camera review of records At this time, in order to facilitate a determination as to the applicability of the exemption claims made by UMass to withhold responsive records in their entirety, UMass is ordered to provide this office an un-redacted copy of the responsive records for in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the withheld portions of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. 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. Order Accordingly, UMass is ordered to provide this office with an un-redacted copy of the responsive records without delay.

Christine M. Wilda SPR18/1346 Page 4 September 12, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Dusty Christensen