Shea Melvin v. University of Massachusetts (SPR 20220420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2022 SPR22/0420 Christine Wilda Associate Chancellor for Compliance University of Massachusetts Amherst 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 Amherst (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 Appeals This request was the subject of previous appeals. See SPR21/2550 Supervisor of Records Determination (October 19, 2021); SPR21/2930 Supervisor of Records Determination (November 16, 2021); SPR21/3314 Supervisor of Records Determination (January 3, 2022). In my January 3rd determination, I ordered the University to provide an estimated date as to when it intends to provide outstanding records, and encouraged both parties to communicate directly. Subsequently, the University responded on January 20, and February 8, 2022, providing responsive records in redacted form. 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 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 SPR22/0420 Page 2 March 3, 2022 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 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. Att’y 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 January 20th and February 8th Responses In its January 20, 2022 response, the University states that “the responsive records contain redactions. Such redactions are required pursuant to requirements set forth by (i) G.L. c. 4, § 7(26)(a) because the records contain personally identifiable student information as addressed by the Family Educational Rights and Privacy Act (‘FERPA’; 20 U.S.C. § 1232g; 34 CFR Part 99) and (ii) G.L. c. 4, § 7(26)(c).” 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 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

Christine Wilda SPR22/0420 Page 3 March 3, 2022 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). Under Exemption (a) and FERPA, the University argues the following: The records contain personal identifiable information. This means the representation of information that would permit the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means. Such information is protected from public disclosure pursuant to (i) G.L. c. 4, § 7(26)(a) and the Family Educational Rights and Privacy Act (‘FERPA’; 20 U.S.C. § 1232g; 34 CFR Part 99). Based on the University’s response, it remains unclear how the responsive records constitute “education records” where they were created by the University of Massachusetts Police Department for the purpose of law enforcement. See 20 U.S.C. § 1232g(a)(4)(B)(ii). -- Accordingly, I find that the University has not met its burden to redact the responsive records pursuant to Exemption (a) and FERPA.

Christine Wilda SPR22/0420 Page 4 March 3, 2022 Exemption (c) Exemption (c) applies to: 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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 Property 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 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). When analyzing a privacy claim, there is 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. Where the University has redacted personal medical information, I find the University may properly redact such information pursuant to Exemption (c). However, it is not clear how other information redacted from the records would result in personal embarrassment to an individual of normal sensibilities, nor how it constitutes intimate details of a highly personal nature. The University has also not provided information concerning the balancing test discussed above. The University must clarify these matters.

Christine Wilda SPR22/0420 Page 5 March 3, 2022 Burden of Specificity In its February 8th response, the University states that “given that the records are a compilation report, the report contains information that does not relate in any way to [the named individual]. As such, given the parameters of [Ms. Melvin’s] request, this information is not a responsive record and accordingly was redacted.” The University is advised that it must cite an exemption in order to redact Public Records. Based on the University’s response, it is unclear which exemption the University is citing in order to redact large portions of the records provided to Ms. Melvin. 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, 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; 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). The University must clarify these matters. 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