Jacob Gorham v. University of Massachusetts - Amherst (SPR 20241554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2024 SPR24/1554 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340 Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Jacob Gorham appealing the response of the University of Massachusetts, Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 19, 2024, Mr. Gorham requested: [T]he following information from the Parking Services office, from Officer pco980, and from the University of Massachusetts at Amherst Police Department. 1. All copies of any data that Parking Services maintains relating to me . . . or from Officer pco980, or from the University of Massachusetts Police Department, including relating to a warning citation incident occurring on April 16, 2024 at 15:16. This should include copies of [a specified] citation (#24203700624) and warning record on campus as far back as possible, the full name of the officer issuing the citation, and any evidence that the police department and parking services maintains on [a specified individual], including any evidence that a proper authorization to park was not granted to [him] at the time of the incident in question. The University responded on May 1, 2024, providing responsive records, and indicating that it was withholding the name of the parking officer pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the University’s response, Mr. Gorham appealed, and this case 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 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 SPR24/1554 Page 2 June 5, 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). 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The University’s May 1st Response In its May 1, 2024 response, the University provides responsive records, and claims that it is withholding the name of the parking officer pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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). 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). 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

Christine M. Wilda SPR24/1554 Page 3 June 5, 2024 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the University states that “[t]he full name of the parking officer issuing the citation is being withheld pursuant to statutory exemptions set forth in G. L. c. 4, § 7(26)(c).” Based on the University’s response, it is unclear how the name of a parking officer would constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the withheld information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the University did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The University must clarify these matters. Conclusion Accordingly, the University is ordered to provide Mr. Gorham 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: Jacob Gorham