Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20241697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records June 20, 2024 SPR24/1697 Ryan C. Merrill Director of Strategic Communications & Media Relations University of Massachusetts – Dartmouth Office of Public Affairs 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of Eleonora Bianchi, of the New Bedford Light, appealing the response of the University of Massachusetts – Dartmouth (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2024, Ms. Bianchi requested, “... a copy of the entire personal [sic] file of [an identified individual] including but not limited to tenure history and promotion record [and] the Faculty Appointment Records for [an identified individual] from September 1, 2012, to September 1, 2013.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/1339 Determination of the Supervisor of Records (May 16, 2024). In my May 16th determination, I learned that UMass intended to provide Ms. Bianchi with a further response. UMass responded on June 4, 2024. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/1697, 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 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

Ryan C. Merrill SPR24/1697 Page 2 June 20, 2024 order to withhold a requested record. G. L. c. 66, § 10(d)(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). 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. UMass’ June 4th response In its June 4, 2024 response, UMass cited Exemption (c) of the Public Records Law, to withhold the requested records in their entirety. 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). 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

Ryan C. Merrill SPR24/1697 Page 3 June 20, 2024 Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). 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 June 10, 2024 response, UMass stated the following: [w]hile as a general matter records custodians bear certain burdens when offering the applicability of a statutory exemption in the Massachusetts Public Records Law, here the requester seeks records that are clearly exempt from disclosure based upon the plain language of G. L. c. 4, § 7(26)(c). The clear applicability of this exemption is supported not only by a plain reading of the statute, but also in the Supervisor of Records published guide, A Guide to the Massachusetts Public Records Law (rev. December 2022) (“SOR Guide”) pp. 17-19, as well as two Massachusetts court cases that consider personnel records and are in fact cited in the SOR Guide: Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003) and Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). Finally, our response here considers not only the specific request here but also its overall implications. We ask that the Supervisor of Records do the same. It is our understanding that it is a well settled and long-established matter that G. L. c. 4, § 7(26)(c) applies to the personnel files of public employees in the Commonwealth of Massachusetts. In camera inspection In order to facilitate a determination as to the applicability of UMass’ claims to withhold the requested records pursuant to Exemption (c) of the Public Records Law, UMass must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being

Ryan C. Merrill SPR24/1697 Page 4 June 20, 2024 reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, UMass is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi