Jacob Gorham v. University of Massachusetts - Amherst (SPR 20242067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2067 Christine M. Wilda Records Access Officer University of Massachusetts – Amherst 341 Whitmore Administration Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Jacob Gorham appealing the response of the University of Massachusetts, Amherst (UMass/University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 5, 2024, Mr. Gorham requested the following: [1.] The current employee roster for Parking Services, including: [a.] The name of each employee [b.] Their position and title [c.] Their current step, grade, and salary [d.] Their unique identifier for issuing citations as linked to that employee [2.] Records (including, but not limited to, emails, databases, and software logs) containing citation issuing identifiers in turn linked or connected to employee names for any Parking Services employee, including specifically any unique identifiers used for issuing citations. [3.] Reports or records detailing the number and type of citations issued by each Parking Services employee, such as daily, weekly, monthly, or annual reports summarizing citation activity and any internal tracking or logs that list citations issued per employee. UMass provided a response on July 19, 2024, citing Exemption (b) of the Public Records Law to withhold records. Unsatisfied with the response, Mr. Gorham petitioned this office and this appeal, SPR24/2067, was opened as a result. 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 SPR24/2067 Page 2 August 2, 2024 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(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’ July 19th Response In its July 19, 2024 response, UMass cited Exemption (b) of the Public Records Law to withhold responsive records. Current Appeal In his appeal, Mr. Gorham states, “[t]he University has not demonstrated how the disclosure of the requested records would inhibit the performance of necessary government functions. The information requested pertains to routine operational data that does not compromise sensitive internal processes or expose confidential personnel matters. I also have no record of prior correspondence which specifically addresses this issue.” Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b).

Christine M. Wilda SPR24/2067 Page 3 August 2, 2024 There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), UMass states, “[t]he Massachusetts Public Records Law exempts the Requested Records from disclosure pursuant to G. L. c. 4, § 7(26)(b) which provides, in pertinent part, that records that are related to internal personnel rules and practices of a governmental unit may be withheld. This statutory exemption applies when the performance of necessary government functions would be inhibited by disclosure of the requested records. Previous correspondence to you provided reasons why information of the type requested here would inhibit the functions of the University’s Parking Services.” Based on UMass’ response, UMass has not demonstrated that the requested records are solely related to internal personnel rules and practices of the government unit. Additionally, UMass has not established how the proper performance of necessary governmental functions requires the withholding of the records responsive to request. Therefore, UMass has not met its burden of specificity to withhold the responsive records under Exemption (b). Further, it is unclear what record(s) responsive to Mr. Gorham’s request UMass is withholding from disclosure. Please be advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, UMass must identify the record(s) it has in its possession that it withheld under Exemption (b), as well as provide specific reasons for such withholding. It is additionally uncertain how records cannot be segregated and exempt portions provided. 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).

Christine M. Wilda SPR24/2067 Page 4 August 2, 2024 Conclusion Accordingly, UMass 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 10 business days. A copy of the 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. Gorham 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: Jacob Gorham