Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20251608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2025 SPR25/1608 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 March 26, 2025, Mr. Gerhardson requested the following records with a date range of January 29, 2025 to March 26, 2025: [1] Any inquiries or requests for data made from or on behalf of the Department of Education Office of Civil Rights. [2] The university’s response to any such inquiries. [3] Metadata for any responsive records described above. In an email to the University on April 3, 2025, Mr. Gerhardson modified his request stating “amend the date on [the request] to be March 10 to present[.]” Previous Appeals This request was the subject of previous appeals. See SPR25/1073 Determination of the Supervisor of Records (April 28, 2025) and SPR25/1305 Determination of the Supervisor of Records (May 22, 2025). In my May 22nd determination, I found that the University had not met its burden under Exemption (f) of the Public Records Law to withhold responsive records in their entirety and needed to identify the records they intended to withhold. The University provided a response on June 6, 2025. Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office and this appeal, SPR25/1608, was opened as a result. While the appeal was pending, the University provided a further response on June 18, 2025. 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 SPR25/1608 Page 2 June 23, 2025 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. 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. 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 May 8, 2025 response, the University states it is “withholding investigatory records that are part of the Department of Education, Office for Civil Rights, OCR Case No. 01-24- 2243….” In its June 6, 2025 response, the University states it is withholding responsive records in their entirety under Exemption (f) of the Public Records Law, and identified the responsive records as “a final letter regarding the details of the case and a data request detailing required records that will be used in the investigation.” In its June 18, 2025 response, the University further elaborates on its claims for withholding the responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f).

Christine M. Wilda SPR25/1608 Page 3 June 23, 2025 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its June 6th response, the University argues the following under Exemption (f): [T]he University previously stated that during prior United States Department of

Christine M. Wilda SPR25/1608 Page 4 June 23, 2025 Education, Office for Civil Rights (‘OCR’) investigations, OCR has taken the position that its investigation is confidential, and that our releasing documents related to it would amount to obstruction. This is not the University’s investigation; it is being conducted by the OCR. The OCR has stated in the past that its investigation is confidential and not to release documents. The requester may file a FOIA request with the OCR - who alone has the jurisdictional discretion to determine what records, if any, may be released at this point. In its June 18th response, the University further explains that “[o]n March 17, 2025, the United States Department of Education, Office for Civil Rights (OCR), opened a case with the University of Massachusetts, Amherst, Case Number 01-24-2243. The March 17, 2025, letter from OCR to the University included details of the student complaint and associated schedule of the specific records requested by OCR to review as part of the investigation. The March 17, 2025, letter and associated case details and records request are what are being withheld as part of SPR25/1608 under investigatory exemption (f). See G. L. c. 4, § 7(26)(f).” Where the University has explained that the records pertain to an active and ongoing investigation and that disclosure would reveal the course of the investigation, the University may properly claim Exemption (f) of the Public Records Law to withhold the requested records at this time. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). 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