Lisa Ducharme v. Westfield State University (SPR 20190332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 27, 2019 SPR19/332 Tricia Oliver Westfield State University 333 Western Ave Westfield, MA O1 086 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, § 1O A; 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); SPR18/885 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); SPRl 8/1765 Determination of the Supervisor of Records (December 7, 2018); SPRl 8/2082 Determination of the Supervisor of Records (January 8, 2019). I closed SPRl 8/1765 by ordering the University to provide Ms. Ducharme with a revised response prepared in a manner consistent with the order, the Public Records Law and its Regulations. On December 20, 2018 the University provided Ms. Ducharme a revised response to her request for records. In my January 3th determination I found Ms. Ducharme's appeal was unclear; for example, it was unclear which part of the University's response she objects to, nor was it clear which records within the index she continues to seek. Ms. Ducharme clarified these matters and SPRl 9/332 was opened as a result. Current Appeal In the December 201 h letter to Ms. Ducharme, the University states it is providing records responsive to Ms. Ducharme's request that were previously withheld from production and/or initially redacted. The University also notes it has included within its custodial index "the 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 SPR19/332 Page2 February 27, 2019 identity of records ( all being emails), categories of records or portion of records withheld and the specific reasons for withholding or redacting information, including the specific exemption or exemptions upon which the withholding is based." Ms. Ducharme identified several emails that she is currently seeking, all of which the University is withholding under Exemptions (c) and (d) of the Public Records Law. G. L. c. 4, § 7 (26)(c)-(d). 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 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).

Tricia Oliver SPR19/332 Page 3 February 27, 2019 Exemption (d ) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In camera review I find that an in camera review of the responsive records at issue would facilitate a determination as to the applicability of Exemptions (c) and (d). See 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 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). 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

Tricia Oliver SPR19/332 Page 4 February 27, 2019 impede our ability to function and would certainly affect our credibility within the legal community. Conclusion The University must provide this office an unredacted copy of the responsive records at issue for in camera inspection without delay. The University may provide this office with an explanation of its position regarding the applicability of an exemption 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lisa Ducharme