Colman Herman v. University of Massachusetts - Medical School (SPR 20222939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2023 SPR22/2939 Laura J. Harris, J.D. 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/UMass Chan) 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 as … of the School for the period October 1, 2021 to September 30, 2022. . . . 2) The written employee reimbursement policy of the School. Previous appeal This request was the subject of a previous appeal. See SPR22/2769 Determination of the Supervisor of Records (December 15, 2022). The School provided a response on December 22, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/2939, 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). 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

Laura J. Harris, J.D. SPR22/2939 Page 2 January 9, 2023 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). The School’s December 22nd response In its December 22, 2022 response, the School cited Exemptions (c) and (d) of the Public Records Law in support of redacting the requested records. Current appeal In his current appeal, Mr. Herman states that the School’s “…far-fetched claim turns exemption D on its head. Which is to say it is a complete distortion of the intent of exemption (d).” Mr. Herman also notes that the School is claiming exemption (c), and states, “…yet another far-fetched claim.” 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).

Laura J. Harris, J.D. SPR22/2939 Page 3 January 9, 2023 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 response, the School stated the following: Releasing credit card and/or account numbers would contain ‘intimate details of a highly personal nature’ and are not necessary information related to the request… Further, UMass Chan does maintain that a potential donor’s identity is of a highly personal nature, particularly if a meeting with a donor is in an early stage of the process and no decision has yet been made whether or not to donate. Releasing identities of a potential donor could embarrass them if, for example, they subsequently decided not to donate. Although the School states it may redact the responsive records under Exemption (c), the School has not sufficiently explained its reasoning. Based on the School’s response, it is unclear how the redacted names of potential donors 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. 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 issues. 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

Laura J. Harris, J.D. SPR22/2939 Page 4 January 9, 2023 used in the development of government policy are subject to disclosure). In its response, the School stated the following: To release the names of prospective donors, or donors who have previously given and are contemplating subsequent gifts, prior to any potential gift could taint the process and have a chilling effect on philanthropy… It is a reasonable assumption that a potential donor may not want his or her identity publicized during the deliberative process and UMass Chan is highly sensitive to respecting potential donors. Although the School states it may withhold the responsive records 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). It is additionally uncertain how disclosure of the redacted information would taint any ongoing deliberative process. The School must clarify this matter. As a result, I find that the School did not satisfy its burden in responding to this records request. 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. 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