Ramsey Clayter v. Mount Wachusett Community College (SPR 20191279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records July 9, 2019 SPR19/1279 Heather Mulry Mount Wachusett Community College 444 Green Street Gardner, MA 01440-1000 Dear Ms. Mulry: I have received the petition of Ramsey Clayter appealing the response of Mount Wachusett Community College (College) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on June 10, 2019, Mr. Clayter requested a document written by an identified Sergeant about an alleged Title IX violation involving an identified individual and himself. The College provided a response on June 25, 2019, denying access to the responsive record pursuant to G. L. c. 149, § 52C and G. L. c. 41, § 97D, as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the College's response, Mr. Clayter petitioned this office and this appeal, SPRl 9/1279, was opened as a result. While this appeal was pending, the College provided a supplemental response dated June 26, 2019. Tlte 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

Heather Mulry SPR19/1279 Page 2 July9,2019 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 College's June 251 response " In its June 25, 2019 response, the College indicates that it provided a copy of Mr. Clayter's personnel file but withheld the Title IX complaint pursuant to the personnel records statute. The College states that "[t]he personnel records statute (MGL c. 149 s. 52C) that mandates the College to turn over Mr. Clayter's personnel record also states in part: 'A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other persons privacy."' The College also indicated that it withheld the complaint from disclosure " ... pursuant to the confidentiality provisions of MGL c.41, s. 97D." The College's June 261 supplemental response " In its June 26, 2019 supplemental response, reiterating its position that the record is withheld from disclosure under the stated statutes in its June 25th response, the College asse1is that the record is fmiher withheld under Exemption (f), which allows"' ... investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation ... [a nd] any details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt."' The College also states that " ... under this same section, 'a records custodian may be permitted to withhold an entire repmi if the identity of witnesses is known to the requester. Such a record could not possibly be redacted in a manner to avoid identification of such witnesses."' Further, the College asse1is that "Mr. Clayter has made an assumption of the identity of the reporting victim and has conducted his own investigation, by contacting individuals he purpmiedly believes are witnesses. Fmiher, the witness mentioned in the complaint is known to Mr. Clayter, as the individual is another current employee." The College states that it" ... reasonably concluded that Mr. Clayter's conduct breached the confidentiality provisions in the PAA, posed a threat to the victim, and was disruptive or interfered with the normal operation of the College. Fmiher, providing the Campus Police repmi would be creating another opportunity for retaliation to the victim and members of the College community, by Mr. Clayter." Exemption (a) In the College's responses, it indicated that it withheld the Title IX complaint pursuant to G. L. c. 149, § 52C and G. L. c. 41, § 97D, as they operate through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding ofrecords that

Heather Mulry SPR19/1279 Page 3 July 9, 2019 are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of pmiicular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statutes provide in relevant pmi: Confidentiality ofR ape and Attempted Assault Reports,· Penalties All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such rep01is shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims' counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 201 of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 ...

Heather Mulry SPR19/1279 Page 4 July 9, 2019 G. L. C. 41, § 97D. Personnel records; review by employee,· corrections,· penalty A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person's privacy .... G. L. C. 149, § 52C. In camera inspection In order to facilitate a determination as to the applicability of the College's claims under Exemptions (a) and (f) to withhold the responsive record from disclosure, the College must provide this office with an un-redacted copy of the responsive record 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.

Heather Mulry SPR19/1279 Page 5 July 9, 2019 Order Accordingly, the College is ordered to provide this office with an un-redacted copy of the responsive record without delay. Sincerely, ~a~ Supervisor of Records cc: Ramsey Clayter