Colman Herman v. University of Massachusetts - Dartmouth (SPR 20222654)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2022 SPR22/2654 Ryan C. Merrill Director of Strategic Communications & Media Relations Office of the Chancellor University of Massachusetts – Dartmouth Old Westport Road North Dartmouth, MA 027547 Dear Mr. Merrill: I have received the petition of Colman Herman appealing the response of the University of Massachusetts, Dartmouth (UMass-Dartmouth) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2022, Mr. Herman requested copies of the following: [1] Records of all the expenses Mark Fuller has incurred in his capacity as Chancellor of UMass-Dartmouth for the period October 1, 2021 to September 30, 2022. This includes, but is not limited to, the following: [a] Expense reports, including back-up receipts; [b] Credit card(s) statements, including back-up receipts; [c] Automobile expense records, including back-up receipts; and, [d] Any and all other records that document Chancellor Fuller’s expenses, including back-up receipts. [2] The written employee reimbursement policy of UMass-Dartmouth. In his October 20th request, Mr. Herman informed UMass-Dartmouth that he is seeking the source documents, not a spreadsheet of the expenses. UMass-Dartmouth provided Mr. Herman with the responsive expense account reports, and a link to UMass-Dartmouth’s employee reimbursement policy. On November 9th, Mr. Herman emailed Mr. Merrill asking a series of questions pertaining to the expense account reports that he received. On November 15th, Mr. Merrill provided answers to Mr. Herman’s questions. 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 SPR22/2654 Page 2 December 2, 2022 On November 16th, Mr. Herman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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) (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). UMass-Dartmouth’s November 20, 2022 email response to this appeal After UMass-Dartmouth was notified of this appeal by a senior attorney in the Public Records Division, on November 20th, Mr. Merrill sent an email response to Mr. Herman and the Public Records Division. In its email, UMass-Dartmouth asserts, “[w]ith respect to the identity of donors, [UMass-Dartmouth] redacted donor identities, where applicable, in accordance with G. L. c. 15A, § 37(f), which provides that donor information is protected and thus this identity information is exempt from disclosure under [E]xemption (a), G. L. c. 4, § 7(26)(a).” Upon receipt of UMass-Dartmouth’s November 20th response, Mr. Herman sent an email to Mr. Merrill, regarding the claim of G. L. c. 15A, § 37(f), as it operates through Exemption (a) to withhold the names of individuals who met with or dined with Chancellor Fuller. Mr. Herman contends, regarding this specific MA General Law, “…you can see that the law you cite is limited to foundations. UMass-Dartmouth is not a foundation and thus the law you cite does not apply here. Moreover, the expenses in question were paid for by UMass-Dartmouth and not by any foundation.” 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).

Ryan C. Merrill SPR22/2654 Page 2 December 2, 2022 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. G. L. c. 15A, § 37(f) provides in pertinent part: Foundations created for public institutions of higher education; governing boards; annual reports: audits Each foundation shall provide an annual report of its financial accounts prepared in accordance with generally accepted accounting principles to the board of trustees of the institution which it supports. The board of trustees may require any supplemental data relative to the operations of the foundation. The identity of donors who wish to remain anonymous shall be protected and anonymity of such donors shall be maintained in all audit reports. The annual financial report when received by a board of trustees shall be considered a public record as defined in clause twenty-sixth of section seven of chapter four. G. L. c. 15A, § 37(f). UMass-Dartmouth’s response did not contain the specificity required in redacting the requested records. UMass-Dartmouth merely cited a provision in the General Laws without explaining how the statute permits it to redact the names of diners listed in the expense reports. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, UMass-Dartmouth has not met its burden to show how the redacted portions fall within Exemption (a) and G. L. c. 15A, § 37(f). Further, where Mr. Herman claims “. . . the expenses in question were paid for by UMass-Dartmouth and not by any foundation[,]” it is unclear how the information could be redacted pursuant to G. L. c. 15A, § 37(f).

Ryan C. Merrill SPR22/2654 Page 2 December 2, 2022 UMass-Dartmouth is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. UMass-Dartmouth must provide a detailed response as to how G. L. c. 15A, § 37(f) permits it to redact the names of individuals who dined with Chancellor Fuller where UMass paid for those expenses. Conclusion Accordingly, UMass-Dartmouth is ordered to provide a response to Mr. Herman, in a manner consistent this order, with the Public Records Law, and its Regulations within 10 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. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman