Gabriel Schmitt v. UMASS Amherst (SPR 20191688)

The Commonwealth of Massachusetts WiUiam Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2019 SPR19/1688 Christine Wilda Associate Chancellor for Compliance University of Massachusetts Amherst 390 Whitmore Administration 181 President's Drive Amherst, MA O1 003 Dear Ms. Wilda: I have received the petition of Gabriel Schmitt 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, Mr. Schmitt requested 34 categories ofrecords including minutes, emails, employment contracts, press releases, and certain financial documents. The University provided a response on August 16, 2019, indicating that responsive records contain information exempt under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). The University also provided a cost estimate. Unsatisfied with the University's response, Mr. Schmitt petitioned this office and this appeal, SPR19/1688, was opened as a result. It appears Mr. Schmitt is only appealing the exemption claims made by the University. 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 fo11n 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); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c11Stodian 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 Ashbmton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christine Wilda SPR19/1688 Page 2 September 3, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($. 05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10( d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10( d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). The University's August 1611 ' response In its August 6, 2019 response, the University indicated that an initial search of the records resulted in 800 documents and infonned Mr. Schmitt that it requires additional time to produce responsive records due to the magnitude of his request. The University also advised Mr. Schmitt that he could contact the University to modify his request. The University further indicated that portions of the records are exempt, because Mr. Schmitt has" ... requested records containing and/or constituting education records, which are protected by the federal law, Family Educational Rights and Privacy Act (20 U.S. C. § 1232g) and which are exempt from disclosure pursuant to exemption (a) [and] ... records containing and/or constituting employee personnel infonnation, the disclosure of which may constitute an unwarranted invasion of personal property, and which is exempt from disclosure under exemption (c)." The University provided a cost estimate which is comprised of "[s]earch: 50 hours at $25/hour = $1,250[;] [s]egregate/[r]edaction: 150 hours at $25/hour = $3,750[;] [n]o charge for first 4 employee hours = $100[;] [t ]otal = $4,900."

Christine Wilda SPR19/1688 Page 3 September 3, 2019 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that 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 particular 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. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or inf01n1ation; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause ofE xemption (c) - personnel Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption forpersonnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment

Christine Wilda SPR19/1688 Page 4 September 3, 2019 applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The comis have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expendihu-es and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding maimer." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Second clause ofE xemption (c) - privacy Analysis under the second clause of Exemption ( c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep 't, 3 80 Mass. 623, 625 ( 1980). Therefore, determinations must be made on a case by case basis. This cfause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: ( 1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same infom1ation is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal infonnation which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 ( 1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PET A, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are canying out their duties in a law-abiding and efficient manner. Id. at 292.

Christine Wilda SPR19/1688 Page 5 September 3, 2019 Claims under Exemptions (a) and (c) In its August 161 h response, the University claimed that the requested records contain education records that are exempt under FERP A, as it operates through Exemption (a), as well as personnel info1111ation, exempt under Exemption ( c) . As a result, the University provided a fee estimate that accounts for the time to search, segregate and/or redact responsive records. Whereas Mr. Schmitt has indicated his willingness to pay the $4,900 fee estimate and the University is yet to produce the responsive records, I find that Mr. Schmitt's appeal is premature and the matter cannot be addressed at this time as the contents of these records are unclear. Mr. Schmitt may appeal the substantive nature of the University's response within ninety calendar days ofreceipt. See 950 C.M.R. 32.08(1). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, ~a~ Supervisor of Records cc: Gabriel Schmitt