Dusty Christensen v. University of Massachusetts - Amherst (SPR 20192515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR e'cords January 6, 2020 SPR19/2515 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts Amherst 390 Whitmore Administration Building 181 President's Drive Amherst, MA O1 003 Dear Ms. Wilda: 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Dusty Christensen requested "any forms disclosing potential academic conflicts of interest-such as a disclosure of financial interest form-filed by UMass Amherst employees from the beginning of 2018 to present." The Urtiversity's Response The University responded on December 18, 2019, forwarding an email provided in response to a similar request made by a different requestor. In this response the University provided six responsive records, and withheld others pursuant to the personnel clause of Exemption (c) of the Public Records Law. Unsatisfied with this response, Dusty Christensen petitioned this office and this appeal, SPR 19/2515, was opened as a result. 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 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

Christine M. Wilda SPR19/2515 Page2 January 6, 20.20 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 withhel.d or redacted portion of the responsive record. Current Appeal In its June 28th email, reproduced in its December 18th response, the University produces six "Summary Disclosure of Financial Interests Forms," and states that "[t]he balance of the University's disclosure forms are withheld pursuant to Massachusetts Public Records Act exemption C (personnel records useful in making employment decisions)." Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; 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 for personnel 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). Fot example, "employment 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 courts 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). Neve1theless, there is a strong public interest in monitoring public expenditures 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 manner." 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

Christine M. Wilda SPR19/2515 Page 3 January 6, 2020 considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. ofWestp01i, 401 Mass. 306,309 (1987). Burden a/Specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. I find that the University has not met its burden of specificity in withholding responsive records under the personnel clause of Exemption ( c ). The University did not provide supporting information concerning how the responsive records constHute "core categories of personnel information" that are "useful in making employment decisions." See Worcester 58 Mass. App. Ct. at 5. To comply with the Public Records Law, a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Conclusion Accordingly, the University is ordered to provide a response to Dusty Christensen consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, ~a~ Supervisor of Records cc: Dusty Christensen, Daily Hampshire Gazette