Colman Herman v. University of Massachusetts - President's Office (SPR 20242426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2024 SPR24/2426 Francis Flaherty, Esq. Records Access Officer University of Massachusetts President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: I have received the petition of Colman Herman appealing the nonresponse of the University of Massachusetts President’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2024, Mr. Herman requested: [1.] Records of all the expenses that [an identified Office employee] incurred…for the period May 1, 2023 to the present. This includes, but is not limited to, the following[:] [a.] Expense reports, including back-up receipts[;] [b.] Credit cards statements, including back-up receipts[;] [c.] Automobile expense records, including back-up receipts[;] [d.] Any and all other records that document [an identified Office employee’s] expenses, including back-up receipts[;] … [2.] The written employee reimbursement policy of the University of Massachusetts president’s office[.] Previous Appeal This request was the subject of a previous appeal. See SPR24/1604 Determination of the Supervisor of Records (June 10, 2024). The Office responded on August 1, 2024. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR24/2426, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Francis Flaherty, Esq. SPR24/2426 Page 2 September 9, 2024 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 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. See 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 Office’s August 1st Response In its August 1, 2024 response, the Office provided thirteen (13) pages of responsive records and cited Exemption (c) of the Public Records Law in support of the redactions. Current Appeal In his appeal, Mr. Herman states that the Office’s “claim of exemption (c) is . . . devoid of the specificity required by the public records law. . . .” Mr. Herman also advises that the Office did not provide records responsive to Items 1b and 1c of his request, as well as the various back-up receipts he seeks under Item 1 of his request. Exemption (c) Exemption (c) permits the withholding of: 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., 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.

Francis Flaherty, Esq. SPR24/2426 Page 3 September 9, 2024 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 August 1, 2024 response, the Office stated, “[i]n the Requested Records you will note the redaction of individuals pursuant to G. L. c. 4, § 7(26)(c), which allows for redaction of [‘]data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy . . . .[’]” Although the Office states it may redact the responsive records under Exemption (c), the Office has not sufficiently explained its reasoning. Based on the Office’s response, it is uncertain how the redacted information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Office’s response whether this information is available from other sources. The Office must provide additional 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. Further, based on the Office’s response, in conjunction with Mr. Herman’s appeal, it is unclear if the Office possesses additional records responsive to the request, particularly, the

Francis Flaherty, Esq. SPR24/2426 Page 4 September 9, 2024 identified Office employee’s credit card statements, automobile expense records, and/or back-up receipts. 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). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his 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: Colman Herman