Cheryl Dukes v. University of Massachusetts - Amherst (SPR 20240165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0165 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 . . . 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 [an identified individual]. [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 SPR24/0165 Page 2 February 2, 2024 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 (. . .) with College of Nursing faculty/staff. [8.] Office of Equity and Inclusion Report of Engagement with Those Impacted by stated Incidents of Misconduct (. . .) 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 [an identified individual]. [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 . . . 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 [an identified individual] 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 . . . 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 . . ., as indicated in the Notice of Loudermill Hearing – from faculty and staff and/or named individuals as documented and reported to [identified individuals]. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2316 Determination of the Supervisor of Records (October 13, 2023). In my October 13th determination, I found that to the extent that the requested records exist, 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). On November 7, 2023, UMass responded. Unsatisfied with UMass’ response, Ms. Dukes petitioned this office and this appeal, SPR24/0165, 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

Christine Wilda SPR24/0165 Page 3 February 2, 2024 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). UMass’ November 7th response In its November 7, 2023 response, UMass stated, Other than the student surveys, the only record I have yet to give you is the transcript you reviewed during your hearing. The transcript was from an interview with an external candidate. I have been told that it was explained to you that to protect the candidate, it could be viewed with redacted information (i.e. candidates name and any other personal information). You chose to review it with those exceptions and you indicated that you recorded the session (which you played during your Loudermill hearing). There are no other records. In regards to Senior Exit Interview – Surveys, they are student records. They are exempt from public record in accordance with the Family Educational Rights and Privacy Act. UMass further advised, “[w]hen I performed the search for the records you requested, many did not exist. My understanding is that they likely never existed.” Current appeal In her January 19, 2024 appeal, Ms. Dukes stated, “I am requesting that she answer the questions as indicated in specificity as related to the outline provided in the document dated October 13, 2023 and to be filed with this office. Her superficial November 7 2023 email response to me is a poor substitute for a response required by the appeal letter sent to her on October 13 2023. SPR23/2316.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Christine Wilda SPR24/0165 Page 4 February 2, 2024 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. “Education records” under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. 5 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: (a) The student’s name; (b) The name of the student’s parents or other family member; (c) The address of the student or student’s family; (d) A personal identifier, such as the student’s social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. In its response, UMass asserted, “[i]n regards to Senior Exit Interview – Surveys, they are student records. They are exempt from public record in accordance with the Family Educational Rights and Privacy Act.” Based on UMass’ response, it is unclear how the “Senior Exit Interview – Surveys” directly relate to students or constitute education records under FERPA. It is additionally uncertain whether the records can be segregated to redact any student information so that nonexempt portions can be provided. The School must clarify these matters. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Christine Wilda SPR24/0165 Page 5 February 2, 2024 No Duty to Answer Questions Please be advised, under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, UMass is ordered to provide Ms. Dukes 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Cheryl L. Dukes