Sherrie Dumais-Carey v. University of Massachusetts - Lowell (SPR 20241616)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2024 SPR24/1616 Jonathan Strunk Executive Director for Communications Strategy University of Massachusetts – Lowell 600 Suffolk Street, Suite 415 Lowell, MA 01854 Dear Mr. Strunk: I have received the petition of Sherrie Dumais-Carey appealing the response of the University of Massachusetts – Lowell (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2024, Ms. Dumais-Carey requested, “…a copy of the charge file pertaining to the [University] Equal Opportunity office (EOO) retaliation complaint I filed on December 9, 2023 against [two identified individuals].” Previous Appeal This request was the subject of a previous appeal. See SPR24/1451 Determination of the Supervisor of Records (May 28, 2024). In my May 28th determination, I learned that the University provided a further response to Ms. Dumais-Carey on May 23, 2024. Unsatisfied with the University’s May 23rd response, Ms. Dumais-Carey petitioned this office and this appeal, SPR24/1616, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Jonathan Strunk SPR24/1616 Page 2 June 12, 2024 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. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Dumais-Carey’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The University’s May 23rd response In its May 23rd response, the University cited Exemption (c) of the Public Records Law to withhold a physical copy of the requested records. Current Appeal In her appeal petition, Ms. Dumais-Carey states: …I’m curious about the University’s rationale for asserting this exemption and why they believe the Public Records Law does not apply in this instance. Is it not incumbent upon the University to demonstrate why the Public Records Law does not apply, rather than solely relay on Exemption C? …[I]t seems that documents related to the workings and determinations of internal affairs processes are not considered personnel information and are therefore not exempt from disclosure…. [I]ndividuals are not required to conduct a personal inspection of the records prior to receiving a copy. Therefore, I would prefer to review the requested documents in electronic format. However, if necessary, I am open to receiving a physical copy. 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

Jonathan Strunk SPR24/1616 Page 3 June 12, 2024 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 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 May 23rd response, the University asserted, “…the University continues to stipulate that Exemption C is accurately being applied by the University and that the records sought for digital transmission are not public or for distribution in the manner asked for by the requestor.” The University’s May 23rd response did not contain the specificity required in a denial of access to public records. Under the Public Records Law, the burden shall be upon the records

Jonathan Strunk SPR24/1616 Page 4 June 12, 2024 custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). Consequently, the University must explain with specificity how the Exemption (c) applies to withhold of the records from disclosure. G. L. c. 66, § 10(b). As a result, I find that the University did not meet its burden in claiming Exemption (c) to withhold a copy of the responsive records in its entirety. Access to Records; Preferred Format of the Requestor The University has also asserted, “[Ms. Dumais-Carey] has the right to come to the office and review the Investigation Report….” In accordance with 950 C.M.R. 32.06(1)(e), “a person shall not be required to make a personal inspection of the record prior to receiving a copy.” Further, under 950 C.M.R. 32.07(1)(a), “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Where the University has restricted access to the responsive records to in-person inspection, I find that the University has not met its burden in responding to this request and must clarify whether the responsive report can be provided in the electronic format that Ms. Dumais-Carey requested, or alternatively, provide a physical copy. Conclusion Accordingly, the University is ordered to provide Ms. Dumais-Carey 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. Ms. Dumais-Carey may appeal the University’s response within ninety days. See 950 C.M.R. 32.08(1).

Jonathan Strunk SPR24/1616 Page 5 June 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Sherrie Dumais-Carey