Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20250118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2025 SPR25/0118 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 Jonathan Gerhardson 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 October 9, 2024, Mr. Gerhardson requested “the Demonstration Response and Safety Team Standard Operating Procedure as described [at a specified hyperlink].” Previous Appeals This request was the subject of previous appeals. See SPR24/2823 Determination of the Supervisor of Records (October 24, 2024) and SPR24/3022 Determination of the Supervisor of Records (November 20, 2024 and December 24, 2024). In my December 24th determination, following in camera review of the responsive record, I found that while portions of the record may fall under Exemption (n), the University had not met its burden to withhold the record in its entirety. Subsequently, the University responded to Mr. Gerhardson on January 13, 2025. Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR25/0118, 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

Christine Wilda SPR25/0118 Page 2 January 27, 2025 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. Current Appeal In his appeal petition, Mr. Gerhardson contends the following: I object to redactions on pages 3, 4, 5, 7, 8. [O]bject to every redaction but in particular, I can see no reason to redact scripts which are to be read as part of a de-escalation. If these would be useful to a terrorist as the University believes, could they not learn them simply by holding a disruptive protest, and then when the de-escalators come, writing down everything they say? The University’s Responses In its January 13, 2025 response, the University provides one responsive record in redacted form, and claims the record is redacted pursuant to Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). In its previous November 7, 2024 response, the University had cited Exemption (n) of the Public Records Law for withholding the record. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would

Christine Wilda SPR25/0118 Page 3 January 27, 2025 jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its previous November 7th response, the University argued the following under Exemption (n): The requested record sets forth internally developed procedures for engaging with protestors. Dissemination of these procedures could assist activists in subverting these procedures and as a result adversely affect University’s attempts to negotiate, resolve de-escalate or mediate tense situations. This adverse effect could place various members of the campus community in danger. While as a general matter the burden to demonstrate applicability of an exemption rests with the record custodian, Exemption (n) explicitly provides deference to the reasonable judgment of the record custodian. In its November 7th response, the University also refers to “University incidents last Spring regarding campus protests or events that occurred on both local and national levels. The ‘sufficient factual heft’ ... is found there.” In its January 13th response, under Exemption (n), the University further argues the following: The document ... includes tactics for engaging with protestors. Outlining the specific step by step tactics to be employed during engagement with individuals or groups could well disrupt the University’s attempts to negotiate and mediate tense situations, placing the campus community in danger. For those reasons, redactions have been applied in accordance with Exemption (n), as release of the material would be likely to jeopardize public safety.

Christine Wilda SPR25/0118 Page 4 January 27, 2025 . . . Note that the redactions here have been applied in a very limited manner, confined solely to specific tactics during engagement situations and are thus consistent with the protections provided by Exemption (n). Based on the University’s November 7th and January 13th responses, and in conjunction with my previous in camera inspection of the record, I find that the University has met its burden to redact the responsive record pursuant to Exemption (n) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gerhardson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson