Colman Herman v. University of Massachusetts (SPR 20230170)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 16, 2023 SPR23/0170 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts, Amherst 340 Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Colman Herman appealing the response of the University of Massachusetts (UMass/University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On the following dates: October 1, 2022, October 18, 2022 and October 20, 2022, Mr. Herman requested the following records across various campus locations: [1] Records of all the expenses [named persons] have incurred in their capacity as … of UMass for the period October 1, 2021 to September 30, 2022 … Prior Appeals The requested records were the subject of prior appeals. See SPR22/2531 Determination of the Supervisor of Records (November 23, 2022); SPR22/2837 Determination of the Supervisor of Records (December 27, 2022); SPR22/2861 Determination of the Supervisor of Records (December 23, 2022); SPR22/2989 Determination of the Supervisor of Records (December 23, 2022) and SPR22/2939 Determination of the Supervisor of Records (January 9, 2023). On January 26, 2023, UMass responded. Unsatisfied with UMass’ response, Mr. Herman petitioned this office and this appeal, SPR23/0170, 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, § 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

Christine M. Wilda SPR23/0170 Page 2 February 16, 2023 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); 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. The Department’s January 26th Response In its January 26, 2023 response, UMass cited Exemptions (c), (d) and (u) of the Public Records Law to redact the requested records. 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 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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

Christine M. Wilda SPR23/0170 Page 3 February 16, 2023 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. In its response, UMass asserted that: [t]he University has provided to the requester information setting forth (i) the identity of the University employee, (ii) that employee’s specific expense (location and amount) and (iii) the intent of the expense (potential fundraising). The only information that has been withheld is the identity of a private citizen who merely is a prospective donor at present with no formal, finalized governmental relationship or status. Addressing a private citizen’s privacy interests, a potential donor’s identity is of a highly personal nature - particularly if a meeting is in an early stage of the development process and no decision has been made whether or not to donate. Releasing identities of a potential donor at such a premature time could embarrass them if, for example, they subsequently decide not to donate. Moreover, releasing the identity at such a premature time would identify this private citizen to the public as a possible source of fund solicitation when this citizen has made no such decision to do so. This could result in myriad intrusive solicitations of the citizen. And, as a final point in administering the balancing test, protecting identity at this stage not only protects a citizen’s privacy rights - it also serves the public interest. Consider that while all higher education institutions rely on donations to support operations, public universities are especially in need of this support. The quality and quantity of the University’s vast, deep and diverse education programs could not exist without the generosity of donors. Although UMass states it may redact the responsive records under Exemption (c), UMass has not sufficiently explained its reasoning. Based on UMass’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, UMass 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,

Christine M. Wilda SPR23/0170 Page 4 February 16, 2023 477 Mass. at 292. 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, UMass asserts, “…the release of a prospective donor’s identity prior to his or her final donation decision being made could result in (i) the micro damage of that prospective donor deciding not to donate and (ii) the macro damage of future prospective donors deciding not to even take a University meeting about a possible donation because they would fear the premature release of their identity information. Such adverse results – micro and macro – certainly fit the definition of ‘tainting’ the deliberative process. The process here is to secure a donation. Premature release of a citizen’s name reasonably could subvert that process and the possibility of an eventual positive outcome.” Although UMass states it may redact 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. Exemption (u) Exemption (u) applies to: 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.

Christine M. Wilda SPR23/0170 Page 5 February 16, 2023 G. L. c. 4, § 7(26)(u). In its response, UMass opines, “[i]t would be difficult to find a more proprietary piece of information for a private concern than their own name – their identity. These appeals seek to send out into the world such profoundly proprietary information before the private concern has made any final decision as to its relationship – if any - with the University.” Based on UMass’ response, it is unclear how the redacted information can be withheld under Exemption (u). Particularly, it is not certain how a prospective donor’s name is proprietary information pursuant to Exemption (u). UMass must clarify these matters. As a result, I find that UMass did not meet its burden of specificity in claiming Exemptions (c), (d) and (u), to redact portions of the responsive records. Conclusion Accordingly, UMass 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman