Brad Fredericks v. University of Massachusetts - President's Office (SPR 20182044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2019 SPRlS/2044 Teri Miller University of Massachusetts - Amherst 374 Whitmore Building 181 Presidents Drive Amherst, MA O1 003 Dear Ms. Miller: I have received the petition of Brad Fredericks appealing the response of the University of Massachusetts -Amherst (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 2, 2018, Mr. Fredericks requested "all historical directory information pertaining to [a named individual], who was a student emolled in the year 2004." The University provided a response on December 12, 2018, denying access to responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the University's response, Mr. Fredericks petitioned this office and this appeal, SPRl 8/2044, 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. 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

Teri Miller SPR18/2044 Page 2 January 3, 2019 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. The University's December 12th response In its December 12, 2018 response, the University indicates "[t]he records ... to the extent they exist, constitute 'education records' as defined by the federal Family Education Rights and Privacy Act (20 U.S.C. § 1232g) (FERP A). Accordingly, the records are exempt from public disclosure by [Exemption (a)] ..." Exemption (a) The University claims it withheld responsive records under FERP A, 20 U.S.C. § 1232g, as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). 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. 151, 54 (1979); Ottaway Newspapers, Inc. 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. The University's response did not contain the specificity required in a denial of access to public records. Instead, the University merely cites Exemption (a), without any further explanation as to the exemption's applicability to the responsive record. As a result, I find the University did not meet its burden of specificity in claiming Exemption (a), because the University did not state how the federal statute applies to allow the University to withhold the

Teri Miller SPR18/2044 Page 3 January 3, 2019 requested information, pursuant to Exemption (a) of the Public Records Law. See G. L. c. 66, § 1O (b )(iv). Further, in his petition for appeal, Mr. Fredericks included alink to the University's data request policy which states the following: "At the University of Massachusetts Amherst, the following information is defined as directory information: student's name, local address, home address, e mail address, major, telephone numbers, date and place of birth, acknowledgment of a student's participation in officially recognized activities and sports, weight and height of members of athletic teams, date(s) of attendance, degrees, certificates, awards received, student employment status and the most recent previous educational agency or institution attended by the student. The University can release some or all of that information, unless a student specifically requests suppression of the data. All other data about students are classified as educational records, and access to educational records, without specific written consent from the student, is much more restricted, per federal and state law and University policy." Based on the foregoing it is unclear why the University is withholding the email address and telephone number of the identified individual, given the fact that the University has classified such information as directory information and not educational records. The University must clarify this matter. In camera inspection In the alternative, in order to facilitate my review, the University may provide this office with an un-redacted copy of responsive records for in camera inspection. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o]n doubtful questions an in camera inspection may be appropriate). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 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. See 950 C.M.R. 32.08(4)(c).

Teri Miller SPR18/2044 Page4 January 3, 2019 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. The University may provide this office with an explanation of its position regarding the applicability of Exemption (a) to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. I understand a Public Records Division staff attorney contacted your office about this appeal. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Brad Fredericks