Mike Offner v. University of Massachusetts - Boston (SPR 20241766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1766 Matthew Fenlon Records Access Officer University of Massachusetts, Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Michael Offner appealing the response of the University of Massachusetts, Boston (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2024, Mr. Offner requested, “... copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA), [identified individuals] of UMass Boston, for the MTA’s webinar on March 21, called ‘Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti-Palestinian Racism’.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/1079 Determination of the Supervisor of Records (April 26, 2024). In my April 26th determination, it was my understanding that UMass intended to provide a further response to Mr. Offner. UMass responded on May 10, 2024. Unsatisfied with UMass’ response, Mr. Offner petitioned this office and this appeal, SPR24/1766, 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). 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

Matthew Fenlon SPR24/1766 Page 2 June 27, 2024 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. UMass’ May 10th response In its May 10, 2024 response, UMass stated, “[o]n April 11, UMass Boston provided you with two responsive documents. The third responsive document was an attendee list.” UMass cited Exemptions (a) and (c) to withhold the responsive document. Current appeal Mr. Offner states in his appeal, “[r]egarding the attendee list, I appeal the decision and ask to receive the attendee list with names redacted but in a manner such that I can determine the number of attendees.” Mr. Offner further advised, “UMass, the MTA, and the presenters at the March 21 MTA webinar have not produced the following that I’ve requested: ‘copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA)’.” 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). 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. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.”

Matthew Fenlon SPR24/1766 Page 3 June 27, 2024 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. In its response, UMass states, “[a]s UMass Boston shared with you in our April 11 email correspondence, counsel for the Massachusetts Teachers Association (MTA), via written correspondence to UMass Boston dated April 5, 2024, set forth a number of arguments in an attempt to support withholding documents here, including, among other things, its contention that provision of certain documents could violate state labor laws under G.L. c. 150, §10 (a)(1) and its interplay with G. L. c. 4, § 7(26)(a).” Based upon UMass’ response, it is unclear how the labor law statute, G. L. c. 150[E], § 10(a)(1), specifically or by necessary implication prohibits the disclosure of the requested records. UMass must clarify. 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). 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., 391Mass. 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. 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.

Matthew Fenlon SPR24/1766 Page 4 June 27, 2024 In its response, UMass asserts that it is withholding the “attendee list ... given the statutory requisites set forth in G. L. c. 4, § 7(26)(c) and the case law authority provided in People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).” Based on UMass’s response, it is unclear how the attendee list, in its entirety, contains intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, UMass did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Further, UMass must clarify whether the attendee list can be redacted as proposed by Mr. Offner, to determine the number of attendees. 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). UMass must clarify this matter. In addition, based on Mr. Offner’s petition, it is unclear if UMass possesses additional records responsive to the request. Specifically, UMass must clarify whether it possesses “copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA).” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, UMass is ordered to provide Mr. Offner 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. Mr. Offner may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Offner