Emma Bensley v. University of Massachusetts - Amherst (SPR 20242886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2024 SPR24/2886 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340F Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Emma Bensley appealing the response of the University of Massachusetts – Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 30, 2024, Ms. Bensley requested, “any records tracking allergic reactions that have occurred in the dining commons on campus from January 1st 2021 to present.” The University responded on October 16, 2024 and October 18, 2024. Unsatisfied with the University’s responses, Ms. Bensley petitioned this office, and this appeal, SPR24/2886, 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. 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 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 SPR24/2886 Page 2 November 1, 2024 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. The University’s Responses In its October 16, 2024 response, the University stated, “[o]n average, UMass Dining serves 8 million meals annually—a total of approximately 30 million meals served from January 2021 to present.” The University further provided the “[b]elow . . . consolidated report of the number of allergic reactions per semester since January 1, 2021.” Semester # of reactions Spring 2021 10 Fall 2021 27 Spring 2022 12 Fall 2022 13 Spring 2023 12 Fall 2023 16 Spring 2024 6 Fall 2024 6 In an email to the University on the same day, Ms. Bensley replied to the University and stated, “there is still some more information I was hoping for. . . . Are there any spreadsheets, or first-responder records or any other documents that would have this kind of information? Anything that you have in machine-readable format . . . would be super helpful.” Following Ms. Bensley’s October 16th correspondence, as described above, in its October 18, 2024, response, the University claimed Exemption (a) of the Public Records Law to withhold the responsive records in their entirety. See G. L. c. 4, § 7(26)(a). 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Christine M. Wilda SPR24/2886 Page 3 November 1, 2024 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.” 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 October 18, 2024 response, under Exemption (a), the University advised, “[w]e are unable to provide additional details because our records would disclose Protected Health Information (PTI) [sic] which would violate the HIPAA Privacy Rule which regulates PHI to ensure its confidentiality and security.” Current Appeal In her appeal petition, Ms. Bensley states, “[t]he University has said disclosing these records would reveal Protected Health Information. However, I believe these records can be redacted to remove that information while still providing the information I am seeking. . .” Burden of specificity; Duty to segregate In light of the above, I find that it is unclear how the HIPAA Privacy Rule, as cited in the University’s October 18th response, specifically or by necessary implication permits the University to withhold the responsive records. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, it is unclear how the HIPAA Privacy Rule specifically or by necessary implication permits the University to withhold the requested records from disclosure. The University must clarify this matter. Additionally, based on the University’s October 18th response, it is unclear what records the University possesses that it withheld under Exemption (a). 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). The University must also clarify whether segregable portions of the records can be 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 SPR24/2886 Page 4 November 1, 2024 Conclusion Accordingly, the University is ordered to provide Ms. Bensley with a response to her 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: Emma Bensley