Dusty Christensen v. Massachusetts Department of Higher Education (SPR 20190835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 8, 2019 SPR19/0835 Ashley Wisneski, Esq. Deputy General Counsel Department of Higher Education One Ashburton Place, Room 1401 Boston, MA 02108 Dear Attorney Wisneski: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Department of Higher Education (Department/DRE) to a request for public records. G. L. c. 66, § IOA; 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." Previous appeal The requested records were the subject of a previous appeal. See SPRI 9/0641 Determination of the Supervisor of Records (April 10, 2019). In my April 10th determination, I found that despite the Department's claims regarding the applicability of Exemptions (d) and (f) to withhold responsive records, the Department had to identify the records in its possession in accordance with the Public Records Law. Accordingly, I ordered the Department to provide Mr. Christensen with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. In a response dated April 18, 2019, the Department provides additional information, identifying the records in its possession. Unsatisfied with the Department's response, Mr. Christensen petitioned this office and this appeal, SPR19/0835, was opened as a result. While this appeal was pending, the Department provided a supplemental response on May 3, 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, § IOA(d); 950 C.M.R. 32.03(4). "Public 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

Ashley Wisneski, Esq. SPR19/0835 Page2 May 8, 2019 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. 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 Department's April 18th response In its April 18, 2019 response, the Department reiterates its " ... position that any records in addition to the 9 pages previously produced to [Mr. Christensen] are exempt from disclosure pursuant to exemption (t) of M.G.L. c. 4, §7(26), in that they are materials gathered as part of the Department's investigation into the compliance of [Hampshire] with the Board of Higher Education's degree-granting regulations, which inquiry has not yet been concluded." The Department indicates that ". . . these records are also exempt from disclosure pursuant to exemption (d) ofM.G.L. c. 4, §7(26) 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 further identified the following as records in its possession that are responsive to Mr. Christensen's request. "I. Minutes of meetings of the Hampshire Board of Trustees. 2. Information about the strategic partnerships that Hampshire is exploring in an effort to ensure the financial stability and continued operation of the institution. 3. Enrollment numbers for Hampshire's degree programs. 4. Audited financial statements, including but not limited to balance sheets, profit and loss statements, and statements of cash flow, for Hampshire. 5. Any financial projections and/or budgets that have been prepared for upcoming fiscal years. 6. Information concerning Hampshire's endowment, including its balance over the past three fiscal years and any breakdown of the restrictions on the endowment's assets, including the terms of the restrictions and the amount of money so restricted. 7. Comprehensive or focused evaluations, reapplications for accreditation, institutional responses to requested information, and interim and/or additional reports filed by Hampshire with NECHE (formerly NEASC).

Ashley Wisneski, Esq. SPR19/0835 Page 3 May 8, 2019 8. Reports, findings, assessments, or communications received by Hampshire from NECHE regarding Hampshire's accreditation and any responses sent by Hampshire to NECHE." The Department farther indicated that it withheld " ... email communications between the DHE's Deputy Commissioner for Academic Affairs and Student Success, ... and Hampshire College administrators from January 22, 2019 to February 25, 2019 to the extent that such communications relate to the DHE's investigation into Hampshire College's compliance with the Board of Higher Education's regulations." The Department's May 3rd supplemental response In its May 3, 2019 supplemental response, reiterating its investigatory process as it relates to private institutions of higher education, the Department asserts that it " ... cannot effectively investigate and enforce institutional compliance with its regulations, and in turn ensure that adequate protections are in place for students at an institution at risk of closure, if the records that the DHE receives from institutions are subject to public disclosure." The Department posits that "[i]f this appeal results in a determination that the DHE is required to disclose records that it received through conducting an investigation, then going forward, an institution will refuse to cooperate with the DHE's investigation (and the DHE is without an effective mechanism to enforce cooperation)." · Under its Exemption (f) claim, the Department indicates that "[a]s the DPR's Guide to Massachusetts Public Records Law notes on page 20, "The legislature also designed the [investigatory] exemption to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation." The Department contends that" ... contemporaneous public exposure of information gathered during a DHE investigation would not only prejudice the investigatory process and outcomes, but would also have the potential of causing a precipitous closure of an institution due to declining enrollments before the DHE has an opportunity to complete its assessment and make any independent determinations based on its regulatory standards. Neither outcome can be said to be in the best interests of the public." Under Exemption (d), the Department states that "'[p]olicy' is defined as 'the general principles by which a government is guided in its management of public affairs.' Through its review of the documents submitted by Hampshire, the DHE is developing the principles by which it will manage Hampshire's current situation and related public affairs -particularly its continued authority to grant degrees and access state financial aid, as well as how the Hampshire situation may impact or alter the DHE's current processes." The Department explains that its " ... regulatory and enforcement activities as they relate to financially fragile institutions of higher education are on-going; therefore, the DHE is in the deliberative process stage, and it is necessary to compile this information out of the public view so as to not taint the DHE's deliberative process if prematurely disclosed."

Ashley Wisneski, Esq. SPR19/0835 Page4 May 8, 2019 Exemption (I) 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 ofrecords 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. 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 I 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).

Ashley Wisneski, Esq. SPR19/0835 Page 5 May 8, 2019 In camera inspection In order to analyze the legal basis of the Department's current position, it is the finding of this office that an in camera review of un-redacted copies of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Department. See 950 C.M.R. 32.08(4). 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. 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"). 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 impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen