Shea Melvin v. University of Massachusetts - Amherst (SPR 20212930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2021 SPR21/2930 Christine Wilda Associate Chancellor for Compliance University of Massachusetts 341 Whitmore Administration Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Shea Melvin appealing the response of the University of Massachusetts (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 4, 2021, Ms. Melvin requested: 1. Police records at the Umass police department regarding [a named individual] 2. Email Correspondence within umass police department or UMPD employees with any other employee or department at umass or within the university system or outside entities. Ms. Melvin indicated “the time range is from January 2018 to February 2020.” Previous Appeal This request was the subject of a previous appeal. See SPR21/2550 Supervisor of Records Determination (October 19, 2021). In my October 19th determination, I ordered the University to provide Ms. Melvin with a response to her request. Subsequently, the University provided a written response on October 27, 2021. Unsatisfied with the University’s response, Ms. Melvin appealed, and this case 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 agency or 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 SPR21/2930 Page 2 November 16, 2021 municipality 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); 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. Current Appeal In her appeal petition, Ms. Melvin contends that she “requested police records” and argues the following: The first request was regarding police records of [the named individual] and therefore clearly fall under “law enforcement unit records” are not private educational records. [She] did not request educational records of [the named individual]. The second request regards correspondence of university employees and university departments regarding [the individual]. [The individual’s] email records or otherwise educational records are not being requested, only emails of university employees or departments discussing this individual. As these are not educational records FEPRA does not apply. The University’s October 27th Response In its October 27, 2021 response, the University cites Exemption (a) of the Public Records Law, and FERPA, for withholding responsive records. See G. L. c. 4, § 7(26)(a); 20 U.S.C. § 1232g. 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). 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

Christine Wilda SPR21/2930 Page 3 November 16, 2021 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 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. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . . 20 U.S.C. § 1232g(b)(1). The statute goes on to list seven categories of individuals, agencies, and organizations to which “education records” may be released. In addition, FERPA provides the following limitation on the definition of “education records”: The term “education records” does not include— . . . records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement. 20 U.S.C. § 1232g(a)(4)(B)(ii).

Christine Wilda SPR21/2930 Page 4 November 16, 2021 In its response, the University contends that Ms. Melvin has “requested student education records, which are protected by the federal law Family Educational Rights and Privacy Act (‘FERPA’) and which are exempt from disclosure pursuant to exemption (a).” Based on the University’s response, it is unclear how responsive records created by the University of Massachusetts Police Department constitute “education records” as defined under FERPA. The University must clarify this. Burden of Specificity Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. - - - - v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). In this case, the University’s response did not contain the specificity required in a denial of access to public records. The University did not identify the records in its possession that it intends to withhold from disclosure. Conclusion Accordingly, the University is ordered to provide Ms. Melvin with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shea Melvin