John Harnois v. University of Massachusetts - Amherst (SPR 20200114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 31, 2020 SPR20/0114 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts - Amherst 340 Whitmore Building Amherst, MA O1 003 Dear Associate Chancellor Wilda: I have received the petition of John Harnois appealing the response of the University of Massachusetts (UMass) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 29, 2019, Mr. Harnois requested: "[t]he overall legal costs representing UMass related to defending suits from students and employees related to Title IX and discrimination from 2012 to date of production. Costs should be broken down by suit and budget line item. Of priority are cases by students against UMass related to Title IX such as Haidak v. Umass Amherst. Any and all reports, communications and rulings, etc ... from investigations by Dept of Education Office of Compliance (OCR) from 2012 through 2017 into UMass handling Title IX issues." Prior appeal The requested records were the subject of a prior appeal. See SPRl 9/2405 Determination of the Supervisor of Records (Supervisor) (December 16, 2019). The prior appeal was opened due to UMass's nonresponse to Mr. Harnois's October 29, 2019 public records request. I closed SPR19/2405 upon UMass's December 11, 2019 response indicating that UMass is currently involved in a civil action filed against UMass -Dartmouth and its employees by John Harnois. See John Harnois v. University of Massachusetts, U.S. Dist. Ct. (D.MA), (Docket No. 1: l 9-cv- 10705). In its December 11, 2019 response, UMass' s Deputy General Counsel, Denise Bmion, states, "[t]he [UMass] defendants have gathered, and intend to produce as part of their Fed. R. Civ. P. 26(a)(l) initial disclosures the documents concerning the claims Mr. Harnois has made against them in his operative complaint (which is 78 pages long and is comprised of 518 paragraphs and 69 footnotes). Because of the stay/extension Mr. Harnois sought and received from the federal court, those initial disclosures are now due on January 17, 2020. The remainder 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

Associate Chancellor Christine M. Wilda SPR20/0114 Page 2 January 31, 2020 of discovery, including the University defendants' responses to Mr. Harnois' document requests, will proceed in accord with and abide the federal court's November 18, 2019 order (Docket No. 68)." On December 16th, I ordered UMass to provide a further response to clarify whether UMass intends to provide any of the records requested from Mr. Harnois's public records request. Current appeal- UMass's January 17, 2020 response On January 17, 2020, UMass provided Mr. Harnois with another response concerning his October 29th public records request. In its January 1th response, UMass indicates: "UMass intends to produce to [Mr. Harnois] all responsive, non-privileged, or otherwise not protected documents, in accord with an Order of the U.S. District Court for the District of Massachusetts, in [Mr. Harnois's] civil action currently pending against [UMass] and its employees, Case No. 1:19-cv-10705. However, [UMass] does not intend to provide any additional records to [Mr. Harnois] in response to [his] October 29, 2019 public records request .. .It is [UMass' s] position that such records are exempt from disclosure under [E]xemption (d) ... Lafferty v. Martha's Vineyard Commission, 17 Mass. L. Rptr. 501 (2004). This position is premised on the fact that the public records in question are central to a dispute that is in active litigation. See 950 C.M.R. 32.08(2)(b)." As a result of UMass's January 17th response, Mr. Harnois petitioned the Supervisor again, and the current appeal was opened. · Exemption (d) -Active Litigation 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 sub-clause 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. 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

Associate Chancellor Christine M. Wilda SPR20/0l 14 Page 3 January 31, 2020 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 subject to disclosure). Exemption (d) is intended to avoid the disciosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988). Furthermore, the preparation of and involvement in litigation by a public body entails the development of "policy positions" by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Maiiha's Vineyard Commission, Superior Comi, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107, *10. In its January 17th response, UMass indicates that it is in active litigation filed by Mr. Harnois in the US District Court, District of Massachusetts, and that the parties are currently in the discovery process. Therefore, UMass states, "[t]his position is premised on the fact that the public records in question are central to a dispute that is in active litigation. See 950 C.M.R. 32.08(2)(b). In particular, [Mr. Harnois's] claims in the [referenced civil litigation] include broad based challenges, on several legal grounds, to the manner in which the University conducts Title IX investigations, and investigations of alleged discrimination, and makes specific allegations aboutthe financial impact upon [UMass] as a result of these investigations." In addition to Exemption ( d) and the Lafferty case, UMass cites Public Records Law Regulation 950 C.M.R. 32.08(2)(b) as permitting the Supervisor to deny an appeal if the requested records are the subjects of disputes in active litigation. 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records. 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Whereas the public records in question are the subject of disputes in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation"). It should be noted that a change in the

Associate Chancellor Christine M. Wilda SPR20/0l 14 Page 4 January 31, 2020 status of this action in the U.S. District Court, (D. MA) could impact the applicability of 950 C.M.R. 32.08(2)(b ). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, ~ i l l ~ Supervisor of Records cc: John Harnois Denise Barton, Esq., Deputy General Counsel, UMass