John Harnois v. University of Massachusetts - Dartmouth (SPR 20202544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2020 SPR20/2544 Ryan C. Merrill Acting Director of Media Relations UMass Dartmouth Office of Public Affairs University of Massachusetts - Dartmouth 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of John Harnois appealing the response of the University of Massachusetts Dartmouth (UMass) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 10, 2020 Mr. Harnois requested: “1. A listing of all Title IX complaints investigated at UmassD, the nature of the complaint and the outcomes of same from 2014 to date of production. Documents that summarize the number of incidents investigated and results from 2014 to 2020. 2. A copy of the complete investigative file (unredacted) related to John Harnois, which is legally part of his academic file, and of which he is afforded a copy pursuant to FERPA. Any and all documents related to the Title IX investigation of John L. Harnois during the spring and summer of 2016 to include but not limited to: interoffice emails, notes, interview reports, and other communications between [named individuals] the staff at School of Marine Science and Technology; investigative reports/summaries/ and interviews, unredacted documents in the possession of UMASS Dartmouth police and any other documents related to the Title IX investigation related to John L. Harnois. 3. Any communications or documents related to or a part of all OCR investigations from 2014 to date of production. 4.[a named individual] training records as an investigator related to Title IX investigation and conducting investigation in general from Jan 2014 to Jan 2017 inclusive 5. All letters, documents and communications related to TITLE IX procedures, investigations and policy created by Umass Dartmouth Employees from 2012 to 2020. Any policy, document or hiring or organizational changes related to TITLE IX procedures since 2012. 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

Ryan C. Merrill SPR20/2544 Page 2 January 5, 2021 6. Documents related to and from Dept of Education in relation to Title IX as it concerns University of Massachusetts and UMASS Dartmouth, such as an investigation of the School by OCR and any settlement with Department of Education. 7. All documents, emails, and any electronic communications related to John L. Harnois' application to School of Marine Science and Technology. All documents emails, and any electronic communications related to the academic record of John L. Harnois (DOB….) 8. Any disciplinary record related to John L. Harnois unredacted. 9. Any paper or article written about or published by or about [named individual] since her hiring. 10. Communications or emails or documents between [named individuals or any Woods Hole Oceanographic Institute staff member and [named individuals] from 12/1/2015 through date of production. 11. Communications or emails or documents between any staff member from Duke Marine Lab and [named individuals] from 12/1/2015 through date of production. 12. The identity of the professor who filed a complaint against John Harnois for supposedly logging onto his / her computer in May 2016. 13. Any and all communications and documents related to the lawsuit of John Harnois v UMASS Dartmouth et al. Case number 1:19-cv-10705 that was settled in November 2020.” Prior appeal The requested records were the subject of a prior appeal. See SPRl9/2405 Determination of the Supervisor of Records (Supervisor) (December 16, 2019); SPR20/0114 Determination of the Supervisor of Records (January 31, 2020). I closed SPR20/0114 due to the pending litigation Mr. Harnois filed against UMass Dartmouth and its employees. See John Harnois v. University of Massachusetts, U.S. Dist. Ct. (D.MA), (Docket No. 1: l 9-cv-10705). Unsatisfied with UMass’ response, Mr. Harnois appealed and SPR20/2544 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, § 10A(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, § 10(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…”); 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).

Ryan C. Merrill SPR20/2544 Page 3 January 5, 2021 In camera inspection In order to facilitate a determination as to the applicability of UMass' claims, UMass must provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, UMass is ordered to provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Harnois