Cheryl Dukes v. University of Massachusetts - Amherst (SPR 20232316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2316 Christa 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 Cheryl L. Dukes appealing the response of the University of Massachusetts, Amherst (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 26, 2023, Ms. Dukes requested the following records: [1.] Written ... Reportage of Implementation of Due Process via articulated University/College Policies and Records/Reports of Action/Activity of Accountability with Documented Reports and Analysis of Outcomes and Impacts of Action and Engagement vis-à-vis Cheryl L. Dukes Alleged Incidents of Misconduct as stipulation in the November 28, 2022, December 8, 2022, and January 17, 2023 Notice(s) of Loudermill Hearing. [2.] Request: Written [time-stamped dated] documentation of [identified] Dean Implementation of due process via Articulated Policies and Records of Action/ Activity of Accountability with Documented Reports of Outcomes and Impacts of Action and Engagement as well as reports of individual(s) perceptions, the individual(s) claims, the individual(s) concerns (formal and informal) and the individual(s) assertions for incidents of misconduct as described, claimed, and submitted in the Notice of Loudermill Hearing, dated November 28, 2022, December 8, 2022, and January 17, 2023 from [identified] Director ... and HR Partnerships to Cheryl L. Dukes. [3.] Climate Survey College of Nursing data/results for 2016, 2017 and 2021; [4.] College of Nursing 2018 Senior Exit Interview-Survey with survey questions and raw data responses. [5.] College of Nursing and Elaine Marieb College of Nursing Senior Exit Interview-Survey with survey questions and raw data for specific years. [6.] Annual Climate Incident Report with College of Nursing and Elaine Marieb 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 Wilda SPR23/2316 Page 2 October 13, 2023 College of Nursing data – Office of Equity and Inclusion for specific years. [7.] Office of Equity and Inclusion Report of Leadership Engagement with Elaine Marieb College of Nursing related to the stated Incidents of Misconduct (Cheryl L. Dukes) with College of Nursing faculty/staff. [8.] Office of Equity and Inclusion Report of Engagement with Those Impacted by stated Incidents of Misconduct (Cheryl L. Dukes) including dates, times, and nature of engagement with faculty/staff members of the College of Nursing. [9.] Email and May 23, 2022 Zoom Video/Audio Recording including Zoom transcript and Zoom chat of public presentation by . . . [10.] Memoranda, emails, and other digital, written documents including calendar/schedules and meeting agendas regarding accountability and/or actions of accountability as related to stated Incidents of Misconduct by Cheryl L. Dukes. [11.] [Time-stamped/dated] Emails and written documentation, memos, notes, etc. of members of Elaine Marieb College of Nursing faculty and or staff persons engagement with Cheryl L. Dukes regarding named Incidents of Misconduct, as indicated in the Notice of Loudermill Hearing. [12.] [Time-stamped/dated] Emails and written documentation, memos, notes, etc. of accountability measures taken with Cheryl L. Dukes with designated outcomes for named Incidents of Misconduct, as indicated in the Notice of Loudermill Hearing. [13.] [Time-stamped/dated] Emails and other written documentation of expectations for improved or changed behaviors and outcomes with articulated consequences for continued misconduct to Cheryl L. Dukes regarding named Incidents of Misconduct, as indicated in the Notice of Loudermill Hearing. [14.] [Time-stamped/dated] Emails and written documentation of reported/stated Incidents of Misconduct by Cheryl L. Dukes, as indicated in the Notice of Loudermill Hearing – from faculty and staff and/or named individuals as documented and reported to [identified individuals]. UMass responded on July 21, 2023. Unsatisfied with the response, Ms. Dukes petitioned this office and this appeal, SPR23/2316, 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). 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).

Christine Wilda SPR23/2316 Page 3 October 13, 2023 UMass’ July 21st response In its July 21, 2023 response, UMass advised, “[p]lease see responsive records here and attached. There are other records that you are party to so [UMass] [is] ... not required to reproduce here.” UMass further cited Family Educational Rights and Privacy Act (20 U.S. C. §1232g) to withhold the Senior Exit Interview-Surveys. Current appeal In her appeal, Ms. Dukes states, “... the public records administrator ... did not indicate whether the records I requested actually exist. As you will see, my request is 10 pages long, yet there’s no indication of responding to the questions I have asked and the records I have requested. Given her response to me, it is unclear to me whether she will be responsive to a follow up question to her ...” The UMass’ July 21st response did not contain the specificity required in a denial of access to public records. UMass must identify what records it has in its possession, custody or control that are responsive to Ms. Dukes’ request. 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). As a result, I find that UMass did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find that UMass 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 Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, UMass is ordered to provide Ms. Dukes with a response to her 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. Ms. Dukes may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1).

Christine Wilda SPR23/2316 Page 4 October 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Cheryl L. Dukes