Colman Herman v. University of Massachusetts - Medical School (SPR 20222769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2022 SPR22/2769 Laura J. Harris Legal Associate Office of Management University of Massachusetts Medical School 55 Lake Avenue North Worcester, MA 01655 Dear Ms. Harris: I have received the petition of Colman M. Herman appealing the response of the University of Massachusetts Medical School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2022, Mr. Herman requested the following records: 1) Records of all the expenses [a named person] has incurred in his capacity … of the School for the period October 1, 2021 to September 30, 2022. . . . 2) The written employee reimbursement policy of the School. The School provided a response on December 2, 2022. Unsatisfied with the School’s response, Mr. Herman petitioned this office, and this appeal, SPR22/2769, 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 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

Laura J. Harris SPR22/2769 Page 2 December 15, 2022 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). The School’s December 2nd response In its December 2, 2022 response, the School stated that “…certain information was redacted from the attached records. In particular, names of prospective donors and/or partners on various business initiatives are redacted pursuant to M.G. L. c. 4, § 7(26)(c) and (d). Specific room locations, credit card numbers and account numbers are redacted pursuant to M.G. L. c. 4, § 7(26)(c).” 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). 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 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). 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. Although the School states it redacted the “names of prospective donors and/or partners on various business initiatives” under Exemption (c), the School has not sufficiently explained its

Laura J. Harris SPR22/2769 Page 3 December 15, 2022 reasoning. It is unclear how the redacted information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. Further, with regard to the balancing test described above, the School has not demonstrated how the privacy interest at issue outweighs the public interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. See PETA, 477 Mass. at 292. The School must clarify these matters. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Although the School states it may redact “names of prospective donors and/or partners on various business initiatives” under Exemption (d), it is uncertain how this information constitutes inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency as required by Exemption (d). Also, the School has not demonstrated how disclosure of the redacted information would taint any ongoing deliberative process. The School must clarify these matters. As a result, I find that the School did not meet its burden of specificity in redacting records under Exemptions (c) and (d) of the Public Records Law. Conclusion Accordingly, the School is ordered to provide Mr. Herman 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. Mr.

Laura J. Harris SPR22/2769 Page 4 December 15, 2022 Herman may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman