Lisa Ducharme v. Westfield State University (SPR 20181765)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 7, 2018 SPRlS/1765 Tricia Oliver Westfield State University 333 Western Ave Westfield, MA 01086 Dear Ms. Oliver: I have received the petition of Lisa Ducharme appealing the response of Westfield State University (University) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on February 13, 2018, Ms. Ducharme requested all emails containing certain keywords dated between January 1, 2015 and February 12, 2018. Previous appeals This request was the subject of previous appeals. See SPR18/618 Determination of the Supervisor of Records (May 17, 2018); SPRl 8/885 Determination of the Supervisor of Records (June 27, 2018); SPR18/1047 Determination of the Supervisor of Records (July 30, 2018); SPR18/1159 Determination of the Supervisor of Records (August 15, 2018); SPR18/1456 Determination of the Supervisor of Records (October 16, 2018). I closed SPR18/1456 by ordering the University to provide Ms. Ducharme with a revised custodial index of the records in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. It is my understanding that on November 21, 2018, the University provided Ms. Ducharme a revised custodial index of records responsive to her request. Unsatisfied with the University's response, Ms. Ducharme petitioned this office and as a result SPRl 8/1765 was opened. Current Appeal In its November 21st response the University indicates "[u]nless otherwise noted, all listed redactions fall under exemption ( c) of the Public Records law, the privacy exemption, which exempts, 'personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure ofw hich may constitute an unwarranted invasion ofp ersonal privacy.' - G. L. c. 4, § 7(26)(c)" (emphasis in original). 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

Tricia Oliver SPR18/1765 Page 2 December 7, 2018 The University also refers to the personnel clause of Exemption (c) and indicates "[n]ot included in the below list are responsive records omitted on the bases of being email exchanges that qualify as personnel information used in making employment decisions, as protected in exemption (c) of the Public Records law, the privacy exemption." You also note that "[p]rivate student information was also omitted or redacted per the Family Educational Rights and Privacy Act (FERPA)." In her appeal petition Ms. Ducharme writes, "I am confident none of the emails, which pertain to me, 'constitute an unwarranted invasion of personal privacy."' In a follow up email dated December 6, 2018, Ms. Ducharme states, "[t]he current set of emails is missing un redacted HR/Personnel records. I realized they have stated privacy as a reason for redaction/non inclusion, however since these emails pertain to me, I would like that reconsidered." Exemption (c) 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 G. L. c. 4, § 7 (26)(c). First clause 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). 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). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and

Tricia Oliver SPR18/1765 Page 3 December 7, 2018 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 Comm. of Westport, 401 Mass. 306,309 (1987). 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 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 motorvehicle 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, 4 77 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. Burden ofs pecificity Although the University cites Exemption (c ), it is unclear how the withheld records constitute "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' that may be withheld from disclosure as described above. Wakefield, 431 Mass. at 798. It is also unclear how disclosure of the redacted information would "constitute an unwarranted invasion of personal privacy" under the PETA analysis, particularly in light of the fact that Ms. Ducharme indicates these records pertain to her. The University is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records

Tricia Oliver SPR18/1765 Page4 December 7, 20"18 in order to comply with the Public Records Law and its Access Regulations. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories ofrecords 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. ...) ; Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Therefore, the University has not met its burden to withhold such information. Conclusion Accordingly, the University is ordered to provide Ms. Ducharme with a revised response prepared in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of this 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, ~ 'fflJW~- 0 Rebecca S. Murray Supervisor of Records cc: Lisa Ducharme