Dusty Christensen v. Massachusetts Department of Higher Education (SPR 20190641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/0641 Carlos E. Santiago Department of Higher Education One Ashburton Place, Room 1401 Boston, MA 02108 Dear Mr. Santiago: I have received the petition of Dusty Christensen appealing the response of the Department of Higher Education (Department/DRE) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 25, 2019, Mr. Christensen requested "[a]ny correspondence, including but not limited to emails and their attachments, between Hampshire College (Hampshire) and the [Department] from Jan. 22, 2019 to Feb. 25, 2019." The Department provided a response on March 8, 2019, which included portions of the responsive records. The Department also denied access to other records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Mr. Christensen petitioned this office and this appeal, SPRl 9/0641, was opened as a result. While this appeal was pending, the Department provided a supplemental response on April 8, 2019. 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

Carlos E. Santiago SPR19/0641 Page 2 April 10, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's March sth response In its March 8, 2019 response, the Department indicates that it enclosed 9 pages of records responsive to Mr. Christensen's request. The Department states "[t]o the extent that the [Department] has any additional records that would be responsive to [Mr. Christensen's] request, such records are at this time exempt from disclosure pursuant to exemption (f) of M.G.L. c. 4, §7(26), in that they are materials gathered as part of the Department's investigation into the -----c-om · · ·~~ghe~Education's deg~~~-,------ which inquiry has not yet been concluded." The Department's April 8th supplemental response In its April 8, 2019 supplemental response, the Department claims that the requested records are exempt from disclosure pursuant to Exemptions (f) and also Exemption (d). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department states that its regulation, 610 C.M.R. 2.10, provides that"[a ]n investigation of an institution will be carried out when facts are brought to the

Carlos E. Santiago SPR19/0641 Page 3 April 10, 2019 attention of the Board suggesting a reasonable probability of non-compliance with 610 CMR 2 .. . . When an investigation is undertaken to inquire into probable noncompliance with standards, the Board will require the institution to provide specific information pertinent to the specific concern." Pursuant to this regulation, the Department indicates that it commenced an investigation into Hampshire's compliance with the Board's regulations, on January 14, 2019, and has requested specific information from Hampshire. The Department explains that if through an investigation, it identifies institutional non compliance with its regulations, the Department "by and through the Commissioner of Higher Education, may review the alleged violations with the institution and approve a corrective course of action. Alternately, if the DHE does not determine that pursuing a corrective course of action is Vv'arranted under the cireumstances (or if a eorreetive eourse of action Vv'~f-l"lti'Pem-pl-fite""d1-bl"\lu--»t~------ failed), the DHE may promptly proceed to either suspend or revoke an institution's degree- granting authority. 610 CMR 2.10(2)." The Department states that "[i]n order for a DHE investigation to, ultimately, lead to the collaborative process of developing a corrective course of action and achieve the ideal goal of allowing the institution to improve so that it can survive, confidentiality is essential. Allowing the public contemporaneous access to documents under investigatory review would impede and prejudice the investigatory process." The Department explains that" ... under the current regulatory structure, the DHE relies upon institutions to voluntarily provide the information the DHE seeks. While the DHE clearly has investigatory authority through the Board's regulations, it does not have any subpoena authority and has no recourse (short of revoking degree-granting authority) if an institution refuses to comply with requests for information and documents." As such, "[t]he DHE must rely upon voluntary witness cooperation, both in terms of interviews and document productions, and confidentiality in those disclosures to the DHE is important to advance the quality and reliability of the DHE's investigatory work. Confidentiality of a submission is also of paramount concern to institutions, and if institutions do not have confidence that what is being submitted will be protected from public disclosure, there is no guarantee that institutions will comply." The Department contends that" ... given the cooperative nature of the DHE's investigatory procedures, the possibility that documents obtained through an investigation could become publicly available will make the DHE hesitate to ask for sensitive records that an institution would not want disclosed." The Department states that" ... if the investigatory exemption does not apply to records obtained through the DHE's investigations, it would have a chilling effect on the DHE's ability to investigate institutions of higher education in the Commonwealth; subsequently assist them with strengthening their policies, procedures, and methods and with establishing a plan for addressing non-compliances and averting closure; and, if unable to do so, enforce the provisions in its regulations that require it to assess institutional financial stability and allow for a revocation or suspension of degree-granting authority." The Department further explains that its " ... investigation concerns sensitive issues surrounding the governance, finances, and future of Hampshire, which is a private non-profit

Carlos E. Santiago SPRI9/0641 Page 4 April 10, 2019 institution. Many of the documents that the DHE requested as part of its investigation would almost certainly never be made public by Hampshire or any other private institution of higher education, including minutes of meetings of the Hampshire Board of Trustees; financial projections and budgets; communications with Hampshire's accreditor, the New England Commission of Higher Education; and preliminary information about possible partnerships being explored by Hampshire in order to ensure its continued operation. These are records that are essential to the operation of Hampshire, and as a private entity Hampshire is not required to permit public inspection of its internal records." The Department asserts that "[s]ome of these records could contain sensitive information which, if disclosed in an untimely manner, could derail any intended corrective actions, -----------1-inelttding but not limited to possible partnershi~rrangements and/or commercial transact1H·o--n-s------ (e .g., mergers, acquisitions, leases, sales, etc.). If the DHE is unable to ensure the confidentiality of what Hampshire submits as part of this investigation, Hampshire may decide to refuse to cooperate any further." The Department posits that during its investigation into non-compliance it has two options: corrective course of action or revocation/suspension. The Department asserts that whereas the option to revoke/suspend an institution's degree-granting authority" ... is an extreme remedy, ... one that would prevent an institution from emolling new students, offering courses and degree programs, and granting degrees," it is "necessary that the DHE have the time and opportunity during its investigatory process to assess whether regulatory non-compliance, if found, is so severe as to warrant the closure of an institution and to determine when and how that closure should occur." The Department contends that "[w]ithout the protection of confidentiality during the investigatory process, any premature public disclosure of investigatory materials could result in the premature (or, even worse, unjustified) closure of an institution." The Department contends that "[i]rrespective of the likelihood that an institution could resolve and overcome any regulatory non-compliances identified (through the corrective action phase), public exposure of information gathered during a DHE investigation - both relevant and irrelevant information - contemporaneously with the gathering process would not only prejudice the investigatory process and outcomes but would also have the potential of frightening away prospective applicants, current students, and potential donors alike before the DHE has an opportunity to complete its assessment and make any determinations based on its regulatory standards." The Department explains that "[t]he emollment decline and related decrease in revenue due to fewer students and reduced philanthropy could render the institution's situation worse than it had been and be the death knell for its survival." Accordingly, the Department asserts that where Hampshire's preliminary announcement of its financial challenges" ... has resulted in a significant projected emollment decline for 2019-2020 and a substantial, related decrease in the institution's projected revenue for FY2020, . . . the greater public interest is in allowing the DHE, as the state agency charged with overseeing private institutions in the Commonwealth, to continue its investigation - conducted on behalf of, and for the benefit of, the public - privately and without public disclosure of related materials

Carlos E. Santiago SPR19/0641 Page 5 April 10, 2019 until said investigation is concluded." The Department indicates that upon completion of its investigation, it" ... may publicly release the results of the investigation, but contemporaneously disclosing documents and other information it receives during its open investigations significantly hinders its ability to enforce the Board's regulations, will have a negative impact on institutions under investigation, and in the end would not serve the public interest." Exemption (d ) The Department also claims Exemption ( d) to support its position to withhold additional responsive records. 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). Under Exemption ( d), the Department states that this exemption applies because "in reviewing the materials submitted to the DHE by Hampshire, the DHE is developing its policy positions relative to Hampshire, it is in the deliberative process state, and it is necessary to compile this information and conduct this policy development out of the public view." The Department states that "[t]he correspondence between the DHE and Hampshire, and the documents attached thereto, relate to the DHE's ongoing deliberative process of determining how to best address Hampshire's current issues and could taint the DHE's deliberative process if prematurely disclosed." Despite the Department's claims regarding the applicability of Exemptions (d) and (f) to withhold responsive records, it is unclear what types of records the Department possesses. The Department is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). As such, I find the Department must identify the type of record(s) it has in its possession that it withheld under Exemptions (d)

Carlos E. Santiago SPR19/0641 Page 6 April 10, 2019 and (f). 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. Conclusion Accordingly, the Department is ordered to provide Mr. Christensen with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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. ~y~ Supervisor of Records cc: Dusty Christensen