Lindsay Waskey v. University of Massachusetts - Amherst (SPR 20212454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2021 SPR21/2454 Christine 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 Lindsay Waskey, Esq., on behalf of Kaylie Flaugher, both of People for the Ethical Treatment of Animals (PETA), appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 11, 2021, Kaylie Flaugher requested the following records from January 1, 2017, to the present: [1] All photographic and videographic records related to experiments carried out by UMass-Amherst faculty member, . . . (Department of Psychological and Brain Sciences); and [2] All protocol(s) for which [named faculty member] is the Principal Investigator or Co-Investigator. The University initially responded on May 25, 2021, providing a fee estimate. Subsequently, the University provided a supplemental response on July 26, 2021, providing certain records in redacted form and denying access to other portions of the records pursuant to Exemptions (c), (n), and (u) of the Public Records Law. G. L. c. 4, § 7(26)(c),(n),(u). Unsatisfied with the University’s response, Attorney Waskey petitioned this office and this appeal, SPR21/2454, 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 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 Wilda SPR21/2454 Page 2 October 8, 2021 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); 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. The University’s July 26th response In its July 26, 2021 response, the University provided certain responsive records, and indicated that it “. . . will not provide video graphic records for unpublished work and research currently being conducted which constitutes trade secrets or other proprietary information of the University of Massachusetts nor records that contain images of individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy and jeopardize public safety. In addition, we have redacted personally identifiable information and unpublished material. We are withholding those materials under exemptions (n), (u) and (c) to Section 7(26) of the Massachusetts General Laws.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption 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

Christine Wilda SPR21/2454 Page 3 October 8, 2021 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 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 exemption 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. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s

Christine Wilda SPR21/2454 Page 4 October 8, 2021 determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. Exemption (u) Exemption (u) applies to: 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’s response did not contain the specificity required in a denial of access to public records. Instead, the University’s response merely cites Exemptions (c), (n), and (u) without any further explanation as to the exemptions’ applicability to the requested records. The University is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The University must provide a more in-depth explanation of what records or portions of records are being withheld and how these records are exempt under Exemptions (c), (n), and (u). The University must identify the record(s) withheld under each exemption and explain why the exemption applies. See G. L. c. 66, § 10(b)(iv) (a 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); see Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Consequently, I find the University has not met its burden of specificity to withhold and/or redact responsive records under the claimed exemptions. Conclusion Accordingly, the University is ordered to provide Attorney Waskey 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.

Christine Wilda SPR21/2454 Page 5 October 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Lindsay Waskey, Esq.