James Helling v. University of Massachusetts - Amherst (SPR 20191050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2019 SPR19/1050 Brian W. Burke, Esq. Senior Counsel Office of the General Counsel University of Massachusetts at Amherst 309 Whitmore Administration Building Amherst, MA O1 003 Dear Attorney Burke: I have received the petition of Jim Helling, a licensed social worker in the Athletic Counseling Office at the University of Massachusetts at Amherst (UMass) appealing the response of the Office of the General Counsel at UMass to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 4, 2019, Mr. Helling requested: all EOD, Title IX, Athletic Department and independently commissioned investigative reports, findings, recommendations issued, and actions taken by the Athletics and campus leaders pursuant to such reports relating to allegations or reports concerning coaching practices; communication practices; creation, maintenance or tolerance of a proper environment in the workplace or the educational environment including the athletic program; or other conduct by the intercollegiate Women's Rowing coaching staff, sport administrators, and Athletics administration charged with oversight of program operations and staff performance. Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/823 Determination ih of the Supervisor of Records (Supervisor) (May 7, 2019). In my May determination, I found that UMass did not meet its burden of specificity in withholding the records in their entirety under Exemption ( c ). As a result, I ordered UMass to provide Mr. Helling with a further response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. UMass responded on May 22, 2019. Mr. Helling appealed and SPR19/1050 was opened as a result. 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

Brian W. Bmke, Esq. SPR19/1050 Page 2 June 10, 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, § 1O (b )(iv) (written response must "identify any records, categories of records 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 ... "); 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). Current appeal In its May 2211 response, UMass indicates that it is withholding any such records that d exist under both clauses of Exemption ( c ). The response states in pertinent parts: Any such employee work evaluations or disciplinary documentation would be among the core categories of personnel information that are useful in making employment decisions regarding a particular employee, and would be categorically exempt from production under the "personnel and medical files or information" prong of [E]xemption (c) to [G. L. C. 4, § 7(26)). In addition, such information could impact the reputation of the employee and cause personal embarrassment to a person of ordinary sensibilities, and therefore would be exempt under the second clause of [E]xemption ( c ). UMass also indicates "[t]hus, if the records [Mr. Helling] seeks existed, then identifying the records, categories of records or portions of records in its possession that [UMass] intends to withhold from disclosure under [E]xemption ( c) would be tantamount to revealing the existence of discipline of a publicly known coach or administrator, placing the [UMass] in violation of chapter 66A." Attorney-client privilege and work product UMass further indicates that certain records may be exempt under the common law attorney-client privilege and/or the attorney work product doctrines. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2017); see also DaRosa v. City of New Bedford, 471 Mass. 446 (2015).

Brian W. Burke, Esq. SPR19/1050 Page 3 June 10, 2019 A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. It should be noted that the Supreme Judicial Court (SJC) opined on the work product doctrine in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption ( d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. With respect to the attorney-client privilege claim, I find UMass has not met its burden of demonstrating that the responsive records may be withheld from disclosure under the attorney client privilege because UMass has neither provided an explanation regarding whether the privilege has been waived, nor has it provided a detailed index in accordance with G. L. c. 66, § lOA(a). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a). UMass may elect to provide this office with unredacted copies of these responsive records for in camera inspection as provided for in G. L. c. 66, § lOA(a). However, if it does not elect to do so, it must provide further information regarding these records as contemplated above and in G. L. c. 66, § lOA(a). Further, UMass has not demonstrated how the requested documents were prepared in anticipation of litigation with respect to its work product doctrine claim. UMass must clarify this matter. In camera inspection In order to facilitate a determination as to the applicability of the Exemption ( c) claim made by UMass to withhold the records in their entirety, UMass must provide this office with an

Brian W. Burke, Esq. SPR19/1050 Page 4 June 10, 2019 unredacted copy of the responsive records withheld under Exemption (c) for in camera inspection without delay. 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. See 950 C.M.R. 32.08(4). 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 ofreview. This office is not the custodian ofrecords examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 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. UMass may provide this office with an explanation of its position regarding the applicability of its exemption claims to the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Conclusion Accordingly, UMass is ordered to provide this office with unredacted copies of the responsive records withheld under Exemption (c) for in camera inspection without delay. UMass must also provide a response to Mr. Helling regarding its attorney-client privilege and work product claims in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Brian W. Burke, Esq. SPR19/1050 Page 5 June 10, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jim Helling