Tim D. Norris v. University of Massachusetts - Dartmouth (SPR 20222789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2789 Ryan C. Merrill Director of Strategic Communications & Media Relations University of Massachusetts-Dartmouth Office of the Chancellor Foster Administration Building 285 Old Westport Road Dartmouth, MA 02747-2300 Dear Director Merrill, I have received the petition of Tim D. Norris, Esq., on behalf of Arthur A. Parker Jr., appealing the response of the University of Massachusetts, Dartmouth (University) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2022 and September 22, 2022, Mr. Parker requested (1) a list of all persons who graduated from UMass- Dartmouth from 2010 to 2013 and (2) all records related to an investigation of a named former UMass-Dartmouth police officer. Prior Appeal The records were the subject of prior appeals. See SPR22/2405 and SPR22/2408 Determination of the Supervisor of Records (October 31, 2022). In my October 31st determination, I closed the appeals after the University notified the office of its intention to provide a further response to Attorney Norris. On November 15, 2022, the University provided a response to the requests. Unsatisfied with the University’s response, Attorney Norris petitioned this office on behalf of Mr. Parker this appeal, SPR22/2789, 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 Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 SPR22/2789 Page 2 December 16, 2022 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 November 15th response In the University’s November 15, 2022, response regarding part 1 of the request it stated the requested records are exempt under Exemption (a) through FERPA. Regarding part 2 of the request the University stated that those records are exempt under FERPA, an unnamed statute, and Exemption (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 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.

Ryan C. Merrill SPR22/2789 Page 3 December 16, 2022 The Family Educational Rights and Privacy Act The Family Educational Rights and Privacy Act (FERPA) 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). Part 1 In its November 15, 2022 response, the University states, “FERPA (The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99) permits a university in its discretion to disclose, without a student’s consent, certain ‘Directory’ information.” The University further explains that, “UMD’s exercise of its statutorily conferred authority ends the analysis here.” The University then concludes, “[t]he determination to not disclose student information to a private investigator - whom it may be reasonably inferred will begin to contact students about a sensitive matter - is a valid exercise of UMD’s discretionary authority.” Part 2 In November 15, 2022 response addressing part 2 of the request, the University states, “[a]gain, G. L. c. 4, § 7(26)(a) applies here given the nature of the investigation - both under FERPA (given that the matter involved a student) and under a specific Massachusetts statute that – if needed - we will cite to the SOR under the SOR’s in camera regulatory authority.” The University further states, “[i]n addition, given the nature of the records sought here, G. L. c. 4, § 7(26)(c) exempts disclosure because of the type of privacy interests involved. See Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 443 n.17 (2019).”

Ryan C. Merrill SPR22/2789 Page 4 December 16, 2022 Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The University did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See 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). For example, it is not clear how all of the information contained in the requested list of persons who graduated from 2010-2013 falls under FERPA. Further, to claim Exemption (a), the University must cite a specific statute. Said statute must either expressly state that the redacted or withheld information is not subject to disclosure under the Public Records Law, or must limit dissemination of said information to a defined group or individuals or entities. Consequently, it is unclear what additional statute, if applicable, the University is claiming to withhold responsive records. Additionally, it is unclear how the requested records are exempt under Exemption (c). Particularly, it is uncertain how the records constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the University did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The University must clarify these matters. Conclusion Accordingly, the University is ordered to provide Attorney Norris with a response to the request, provided in a manner consistent with this order, 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 this response to this office at pre@sec.state.ma.us. Attorney Norris may appeal the substantive nature of the University’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Arthur A. Parker Jr. Tim D. Norris, Esq.