Dusty Christensen v. University of Massachusetts (SPR 20191054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/1054 Jeffrey P. Cournoyer Vice President of Communications Office of the President University of Massachusetts -Amherst One Beacon Street, 31st Floor Boston, MA 02108 Dear Mr. Cournoyer: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette 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 February 25, 2019, Mr. Christensen requested "[a]ny correspondence from 04/01/18 to 02/25/19 including but not limited to emails and their attachments - between the University of Massachusetts Office of the President and the UMass Amherst Office of the Chancellor related to the subject of Hampshire College." Previous appeals The requested records were the subject of previous appeals. See SPRl 9/667 Determination of the Supervisor of Records (April 12, 2019) and SPR19/851 Determination of the Supervisor of Records (May 13, 2019). In my May 13th response, I found that the University had met its burden to withhold portions of the responsive records under the attorney-client privilege. However, I found that the University had not met its burden to withhold certain records under Exemption (d) of the Public Records Law. Accordingly, I ordered the University to provide Mr. Christensen with a response consistent with the determination, the Public Records Law, and its Regulations. Following the May 13th determination, the University provided a response on May 23, 2019, that provides additional information regarding its position to withhold certain responsive records pursuant to Exemption (d). G. L. c. 4, § 7(26)(d). Unsatisfied with the University's response, Mr. Christensen petitioned this office and this appeal, SPRl 9/1054, 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

Jeffrey P. Cournoyer SPR19/1054 Page2 June 4, 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. 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 University's May 23rd response In its May 23, 2019 response, the University, responding to Mr. Christensen's contention that '"deliberations are no longer ongoing,"' asserts that "[t]hat is not accurate." The university states that "[a]lthough Mr. Christensen is correct that active discussions between representatives of Hampshire College and [the University] have ceased for the time being, as has been widely reported, that does not mean that [the University] is no longer developing policy with respect to potential engagement with Hampshire College." The University indicates that "[t]he documents withheld comprise internal discussion and deliberation of such policies, and they are protected from disclosure by exemption (d)." 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.

Jeffrey P. Cournoyer SPR19/1054 Page 3 June 4, 2019 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 always subject to disclosure). In camera inspection In order to facilitate a determination as to the applicability of the Exemption ( d) claim made by the University to withhold responsive records from disclosure, the University must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the document, 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). 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. 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. Order Accordingly, the University is ordered to provide this office with un-redacted copies of the responsive records without delay.

Jeffrey P. Cournoyer SPR19/1054 Page 4 June 4, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen