Colman Herman v. University of Massachusetts - President's Office (SPR 20222837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2022 SPR22/2837 Francis Flaherty, Esq. Records Access Officer University of Massachusetts President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: I have received the petition of Colman Herman appealing the response of the University of Massachusetts President’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 1, 2022, Mr. Herman requested: [1] Records of all the expenses [a named individual] has incurred in his capacity as president of the University of Massachusetts 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 cards statements, including back-up receipts[;] [c] Automobile expense records, including back-up receipts[;] [d] Any and all other records that document [an identified individual’s] expenses, including back-up receipts… [2]The written employee reimbursement policy of the University of Massachusetts. Previous Appeal This request was the subject of a previous appeal. See SPR22/2357 Determination of the Supervisor of Records (November 1, 2022). In my November 1st determination, I closed the appeal when I learned the Office intended to provide a further response to Mr. Herman. On December 9, 2022, the Office responded. Unsatisfied with the Office’s response, Ms. Herman petitioned this office and this appeal, SPR22/2837, 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

Francis Flaherty, Esq. SPR22/2837 Page 2 December 27, 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(d)(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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 Office’s December 9th Response In its December 9, 2022 response, the Office asserts: [P]lease find records for the underlying records request. Please note that redactions were made pursuant to applicable statutory exemptions. Specifically, the names of donors and prospective donors were redacted pursuant to G. L. c. 4, § 7(26)(a) in conjunction with G.L. c. 15A, § 37(f), which explicitly provides that the identity of donors who wish to remain anonymous shall be protected. We have also redacted information pursuant to G. L. c. 4, § 7(26)(c) and the names of attendees at meetings have been redacted pursuant to G. L. c. 4, § 7(26)(d) and G. L. c. 4, § 7(26)(u) given the substance and purposes of the meetings. Current Appeal In his appeal, Mr. Herman argues “[the Office’s] claims of redactions lack the specificity required by the public records law….” Further, Mr. Herman argues that the redactions of the identity of donors are not permitted under G. L. c. 15A, § 37(f). Mr. Herman also argues that additional responsive records have not been provided to him. 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

Francis Flaherty, Esq. SPR22/2837 Page 3 December 27, 2022 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. G. L. c. 15A, § 37(f) 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). In his appeal, Mr. Herman argues, “President Meehan’s office is not a foundation and thus M.G.L. c. 15A, [§]37(f) does not apply to it.” The Office’s response did not contain the specificity required in redacting the requested records. The Office cited a provision in the General Laws without explaining how the statute permits it to redact the names 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

Francis Flaherty, Esq. SPR22/2837 Page 4 December 27, 2022 Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Office 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 “any bills for meals and meetings at which donors and other parties were present were paid for by UMass not by any foundation. . .,” it is unclear how the information could be redacted pursuant to G. L. c. 15A, § 37(f). 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. 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. In its December 9th response, the Office states, “[w]e have also redacted information pursuant to [Exemption (c).]” Based on the Office’s response, it is unclear what information the Office redacted from the records under Exemption (c). It is unclear how the redacted information is an intimate detail of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Therefore, I find the Office did not meet its burden in redacting the information under Exemption (c).

Francis Flaherty, Esq. SPR22/2837 Page 5 December 27, 2022 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). In its response, the Office states, “the names of attendees at meetings have been redacted pursuant to [Exemptions (d) and (u)] given the substance and purposes of the meetings.” Based on the Office’s December 9th response, I find that the Office has not met its burden to redact the names of attendees at meetings pursuant to Exemption (d). In particular, the Office has not demonstrated that the names attendees at meetings are document(s) or legal opinions of which are involved in and limited to recommendations of legal and policy matters found within an ongoing deliberative process involving a policy being developed. See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). It is additionally uncertain how disclosure would taint any ongoing deliberative process. Consequently, the Office has not met its burden to withhold the names of attendees under Exemption (d). Exemption (u) Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns G. L. c. 4, §7 (26)(u).

Francis Flaherty, Esq. SPR22/2837 Page 6 December 27, 2022 Based on the Office’s December 9th response, I find that the Office has not met its burden to redact the names of attendees at meetings pursuant to Exemption (u). It is unclear how the names of attendees at meetings are trade secrets or other proprietary information of the University of Massachusetts. The Office must clarify this. Additionally, in his appeal, Mr. Herman states, “I had asked for back-up receipts, but [the Office] has ignored that. For example, [the Office] did not provide back up receipts for any of the hotel, meal, and airline expenses.” Based on the Office’s response, in conjunction with Mr. Herman’s appeal, it is unclear if the Office possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office in ordered to provide Mr. Herman with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman