Dusty Christensen v. University of Massachusetts - Amherst (SPR 20200334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2020 SPR20/0334 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, Mr. 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." Previous appeal This request was the subject of a previous appeal. See SPRl 9/2515 Supervisor of Records Determination (January 6, 2020). In my January 6th determination I ordered the University to provide a response to Mr. Christensen consistent with the order, the Public Records Law, and its Regulations. The University responded on January 21, 2020 and February 18, 2020. Mr. Christensen appealed and SPR20/0334 was opened as a result. 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). 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 SPR20/0334 Page 2 March 6, 2020 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. Current Appeal The University initially responded on December 18, 2019 by 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. The University produced six "Summary Disclosure of Financial Interests Forms," and stated 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)." In my January 6th determination I found the University had not met its burden of specificity in withholding responsive records under the personnel clause of Exemption (c). In particular, the University did not provide supporting information concerning how the responsive records constitute "core categories of personnel information" that are "useful in making employment decisions." In its February 13th response, which is dated February 14t11, the University indicates" ... it is the University's position that the records you have requested are categorically exempt from disclosure pursuant to [E]xemption ( c ), and are otherwise also exempt from disclosure pursuant to [E]xemptions (a), (b), (o), and (u)." 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

Christine M. Wilda SPR20/0334 Page 3 March 6, 2020 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. In its February 13th response the University references G. L. c. 75 § 14A in support of its position. You indicate, in paii, "[t]he Policy enacted pursuant to G.L. c. 75 § 14A is one such way in which the University manages its personnel and matters relating to intellectual property. On its face, the Policy indicates that conflict of interest disclosures will be handled by the. University's Conflict Committee in a confidential manner. Therefore, it is the University's position that the disclosures requested are exempt from disclosure by necessary implication of G.L. c. 75. To require disclosure would be entirely inconsistent with the powers granted to the University as set fmih above." Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. The University indicates, in part, "[r]equiring public disclosure of the internal administrative disclosures related to actual or potential conflicts will have a chilling effect on academic freedom, which harms academic research, the [U]niversity's mission, and the public interest. Under such conditions, the proper performance of a public research university requires withholding of such disclosures in their entirety."

Christine M. Wilda SPR20/0334 Page 4 March 6, 2020 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 comis 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 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). Nevertheless, 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 considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). With respect to the personnel clause, you indicate "[i]n this case, the information you have requested is considered in different aspects of determinations regarding the employment status of faculty, including whether a faculty member may associate with or receive income from an outside entity. Therefore, such information is categorically exempt under the first prong of Exemption (c)."

Christine M. Wilda SPR20/0334 Page 5 March 6, 2020 Exemption (c) - privacy clause 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, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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 information 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 information 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. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The University asserts "[m]any of the matters disclosed to the Conflict oflnterest Committee for review and action include information of a personal and private nature concerning the private financial interests, proprietary business information, and other information of a highly confidential nature that the average person might not share with the public." You also note "[f]or example, private university researchers and private industry will be reluctant or unwilling to work on research projects with University colleagues if information regarding their involvement is necessarily publicly available. Additionally, the chilling effect on research activities will discourage faculty from seeking, accepting, or staying in positions at the University. For these reasons, the privacy interest far outweighs any public interest in disclosure." Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, depaiiment, board, commission, bureau, division or

Christine M. Wilda SPR20/0334 Page 6 March 6, 2020 authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(0). The University asserts "[w]hile it is the University's position that the records requested are exempt in their entirety, this exemption provides further support for the portions of the records containing employees' home address, personal email address and telephone number." Exemption (u) Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns G. L. c. 4, §7 (26)(u). The University contends "[t]he disclosures themselves include proprietary information, including trade secrets, necessarily disclosed by the faculty in order to meet the disclosure requirements of the Policy. It is the University's position that these disclosures must be withheld in their entirety, as disclosure of any portion of the record could necessarily reveal proprietary information regarding a faculty member's research and/or engagement with other researchers and/or entities." Providing segregable portions With respect to the ability to provide segregable portions of responsive records, the University asserts, in part, "[t]he University does not believe that any segregable portion of the record(s) can be disclosed." Based on his appeal petition it appears Mr. Christensen acknowledges that portions of responsive records may be redacted; for example, with respect to Exemption (o), he notes "I'm not interested in that information, which the [U]niversity could simply redact. I'm not at all opposed to the redaction of home addresses, personal email addresses or telephone numbers." Despite its responses, I find the University has not established how the responsive records may be withheld in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Christine M. Wilda SPR20/0334 Page 7 March 6, 2020 Any non-exempt, segregable pmiion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In camera inspection In order to facilitate a determination as to the scope of the applicability of the exemptions, I find the University must provide this office with an unredacted copy of a representative sample of the responsive records at issue for an in camera inspection. 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. 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. Conclusion Accordingly, the University is ordered to provide this office with an unredacted copy of a representative sample of the responsive records at issue for in camera inspection without delay. The University may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that,. unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~m~ Supervisor of Records cc: Dusty Christensen