Eoin Higgins v. University of Massachusetts - Amherst (SPR 20210899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 22, 2021 SPR21/0899 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340 Whitmore Building 181 President's Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Eoin Higgins, appealing the response of the University of Massachusetts – Amherst (UMass) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 23, 2020, Mr. Higgins requested “… personal college emails of two individuals and identified emails addresses sent to or from 13 identified custodians with identified names or topic matters from July 22, 2019 to September 8, 2020.” Previous appeals This request was the subject of previous appeals. See SPR20/2432 Determination of the Supervisor of Records (December 22, 2020); SPR21/0047 Determination of the Supervisor of Records (January 22, 2021); SPR21/0298 Determination of the Supervisor of Records (February 22, 2021); and SPR21/0566 Determination of the Supervisor of Records (March 23, 2021). I closed SPR21/0566 after this office was notified that UMass intended on providing a supplemental response. Subsequently, UMass provided a response on April 7, 2021. Unsatisfied with UMass’ response, Mr. Higgins petitioned this office and this appeal, SPR21/0899, 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). 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 SPR21/0899 Page 2 April 22, 2021 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); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. UMass’ April 7th and March 9th responses In its April 7, 2021 response, UMass states that it incorporates by reference it previous responses. In its previous March 9, 2021 response, UMass cited Exemption (a) to withhold the requested records. UMass states that “[a] review of the pertinent provisions of 610 CMR 10.00 (promulgated by the Board of Higher Education pursuant to St. 1996, c. 151) makes clear that student records are not public records.” UMass also posits that the Family Educational Rights and Privacy Act (FERPA, 20 U.S.C. § 1232g; 34 C.F.R. § 99), also applies to withhold the requested record. UMass explains, “. . . FERPA applies much more broadly to all records directly related to a student that are maintained by the institution - if an institutional record is ‘personally identifiable’ to a student, it is ‘directly related’ to a student and therefore is an ‘education record’ subject to FERPA. This includes non-academic disciplinary records, general correspondence from students, financial aid records, and even a student’s employment file at the university.” Further, UMass indicates, “. . . regarding G.L. c. 214, § 1B (Right of Privacy), G.L. c. 214, § 1B provides that ‘[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.’ Your request seeks a result whereby students who choose to attend public institutions would effectively be penalized for their choice with a substantial loss of privacy. That would be an unreasonable, substantial, and serious interference with privacy rights - prohibited through implication under G.L. c. 4, § 7(26)(a).” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Christine M. Wilda SPR21/0899 Page 3 April 22, 2021 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 Att’y 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. Based on UMass responses, it is unclear if it possesses records responsive to Mr. Higgins’ request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)( 4). Consequently, UMass must confirm whether responsive records exist. Conclusion Accordingly, UMass is ordered to provide Mr. Higgins with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins