Colman Herman v. University of Massachusetts - President's Office (SPR 20230661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0661 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 responses of the University of Massachusetts, Amherst (UMass) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On 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 SPR22/2537 Determination of the Supervisor of Records (November 1, 2022); SPR22/2460 Determination of the Supervisor of Records (November 14, 2022); 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); SPR22/2939 Determination of the Supervisor of Records (January 9, 2023); SPR23/0170 Determination of the Supervisor of Records (February 16, 2023) and SPR23/0433 Determination of the Supervisor of Records (March 20, 2023). On April 4, 2023, UMass responded. Unsatisfied with UMass’ response, Mr. Herman petitioned this office and this appeal, SPR23/0661, 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

Christine M. Wilda SPR23/0661 Page 2 April 20, 2023 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); 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. UMass’ April 4th Response In its April 4, 2023 response, UMass cited Exemptions (c), (d) and (u) of the Public Records Law to redact the requested records. UMass further incorporated its prior arguments. Current appeal In his appeal, Mr. Herman requested that this office order “UMass to release the names of the individuals in question.” 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. 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).

Christine M. Wilda SPR23/0661 Page 3 April 20, 2023 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 December 22, 2022 response, UMass asserted that, “[r]eleasing 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] 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.” See SPR22/2939. In its January 26, 2023 response, UMass asserted that the following: [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. . . . 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. See SPR23/0170. Although UMass states it may redact the responsive records under Exemption (c), UMass has not sufficiently explained its reasoning. Based on UMass’ responses, 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,

Christine M. Wilda SPR23/0661 Page 4 April 20, 2023 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, 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 UMass’ December 13, 2022 response, it explained 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] 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.” See SPR22/2861. In its December 22, 2022 response, UMass asserted, “[t]o 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...” See SPR22/2939. In its January 26, 2023 response, UMass contended, “…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

Christine M. Wilda SPR23/0661 Page 5 April 20, 2023 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.” See SPR23/0170. Although UMass 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. 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. G. L. c. 4, § 7(26)(u). In its March 3, 2023 response, UMass opined, “[r]eleasing the identity of a prospective donor (or put another way, releasing information which is the intrinsic underpinning of a specific in-process University business initiative) could greatly disrupt or impair donation efforts. This result would put the University at a competitive business disadvantage in the world of higher education, especially vis-a-vis its private counterparts. And this adverse result would not be borne by the University alone...this result also harms the public. The citizens of Massachusetts would suffer from the eventual loss of private donation support to its state University.” See SPR23/433. 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). Despite UMass’ responses, I find that UMass did not meet its burden of specificity to withhold the names of donors under Exemptions (c), (d), and (u) of the Public Records Law. Conclusion Accordingly, UMass is ordered to review the records, redact where necessary, and provide the responsive records to Mr. Herman in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Christine M. Wilda SPR23/0661 Page 6 April 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman