Colman Herman v. University of Massachusetts - Dartmouth (SPR 20222861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2022 SPR22/2861 Ryan Merrill Director of Strategic Communication & 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. Prior Appeal 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 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 Merrill SPR22/2861 Page 2 December 23, 2022 questions. On November 16th, Mr. Herman petitioned the Supervisor of Records (Supervisor), and the prior appeal was opened. See SPR22/2654 Determination of the Supervisor (December 2, 2022). In my December 2nd determination, I found that UMass Dartmouth did not meet its burden of specificity in withholding the names of donors on Chancellor Fuller’s expense account reports under M.G.L. c. 15A, § 37(f) as it operates through Exemption (a) of the Public Records Law. I ordered UMass Dartmouth to provide Mr. Herman with 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. Current appeal – SPR22/2861 In UMass Dartmouth’s December 13, 2022 response, UMass Dartmouth has ceased withholding the names of donors under Exemption (a). However, UMass Dartmouth now cites Exemptions (d) and (c) to withhold the names, of donors and/or potential donors, to UMass Dartmouth and listed on the expense account reports. As a result of UMass Dartmouth’s December 13th response, Mr. Herman petitioned the Supervisor, and the current appeal was opened. In his petition, Mr. Herman asserts, “…UMass Dartmouth is not some secret government agency. Which is to say that taxpayers are entitled to know who is giving money to the school.” 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). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions

Ryan Merrill SPR22/2861 Page 3 December 23, 2022 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). Under Exemption (d), UMass Dartmouth contends that “[r]eleasing information regarding prospective donors – or existing donors contemplating prospective gifts – in a premature fashion could taint the process and result in no gift being made. It is a reasonable finding to determine that a donor may not want his or her identity public during this process and [UMass Dartmouth] is understandably sensitive to this fact. Moreover, our application of Exemption [d] is extremely limited here, demonstrating a fair reconciliation of both the [P]ublic [R]ecords [L]aw objective and its provided exemptions. Here the [Mr. Herman] knows of the expense, the meeting and the meeting’s intent – possible fundraising.” Based on UMass Dartmouth’s December 13th response, I find that UMass Dartmouth has not met its burden to withhold the names of donors and potential donors pursuant to Exemption (d). In particular, UMass Dartmouth has not demonstrated that the names of donors and potential donors to UMass Dartmouth 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, UMass Dartmouth has not met its burden to withhold the names of the donors and/or potential donors to UMass Dartmouth under Exemption (d). Exemption (c) Exemption (c) permits the withholding of: 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

Ryan Merrill SPR22/2861 Page 4 December 23, 2022 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. Under Exemption (c), UMass Dartmouth asserts, “[t]he only information withheld is the identity of the prospective private citizen donor (which probably also permits the citation of the exemption set forth in G. L. c. 4, § 7(26)(c), which we do so now).” In claiming Exemption (c) to withhold the names of donors and/or potential donors of monetary or other funds to UMass Dartmouth, based on the December 13th response, UMass Dartmouth has not met its burden of specificity in claiming Exemption (c) to withhold the names of these individuals from disclosure. UMass Dartmouth did not provide any supporting information detailing the 3-part test in PETA, to withhold the names of these individuals. PETA, 477 Mass. at 292. Under Exemption (c) and the PETA decision, UMass Dartmouth was required to meet the requirements of PETA’s three-part test: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contains intimate details of a highly personal nature; and (3) whether the same information is available

Ryan Merrill SPR22/2861 Page 5 December 23, 2022 from other sources. See PETA, 477 Mass. at 292 (2017). Therefore, I find that UMass Dartmouth did not meet its burden of specificity in withholding the names listed on the expense account reports under Exemption (c). Conclusion Accordingly, UMass Dartmouth is ordered to provide Mr. Herman with a response to his request 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