Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20253129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2025 SPR25/3129 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 University of Massachusetts, Amherst (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2025, Mr. Gerhardson requested the following: [1] [A] log of requests for information about current, former, or prospective [u]niversity students or employees, including but not limited to requests which are warrants or subpoenas, made by state, local, or federal government agents and/or law enforcement; [2] If no log exists, records related to each individual request as described above. Prior Appeal This request was the subject of a prior appeal. See SPR25/2873 Determination of the Supervisor of Records (October 15, 2025). In my October 15th determination, it was unclear whether UMass had provided a response. On October 15, 2025, UMass provided a response. Unsatisfied with the response, Mr. Gerhardson petitioned this office and this appeal, SPR25/3129, 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 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 SPR25/3129 Page 2 November 7, 2025 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 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, Mr. Gerhardson states, The omission of a date range from my initial request was an oversight. I regret the error, but do not believe it is grounds for a denial because based on the University’s response it is clear that I have still reasonably described the records I seek. But to clarify and provide a more specific date range to guide the search for responsive records, please use a date range between March 1, 2025 and the date of processing of this request. UMass’ October 15th response In its October 15, 2025 response, UMass cites Exemptions (a), (c), and (f) of the Public Records Law to withhold the requested records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Christine M. Wilda SPR25/3129 Page 3 November 7, 2025 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. “Education records” under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. 5 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: (a) The student’s name; (b) The name of the student’s parents or other family member; (c) The address of the student or student’s family; (d) A personal identifier, such as the student’s social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. 34 C.F.R. 99.3. In its response, UMass states, “Student records are protected pursuant to FERPA.” To the extent the records contain personally identifiable information of students, UMass may withhold such portions under FERPA. However, it remains unclear if UMass could segregate any nonstudent related information from the records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). UMass must clarify this issue.

Christine M. Wilda SPR25/3129 Page 4 November 7, 2025 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). First Clause – Personnel While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co. v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. In its response, UMass states, “[e]mployee records of such a sensitive nature would be protected pursuant to G. L. c. 4, § 7(26)(c), because any such agency or enforcement record would be part of any employee personnel file.” Based on UMass’ response, it is unclear what records it possesses and how the records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. UMass must clarify this matter.

Christine M. Wilda SPR25/3129 Page 5 November 7, 2025 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). 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. As a matter of course, witness provided information is essential to efficient and effective Law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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;

Christine M. Wilda SPR25/3129 Page 6 November 7, 2025  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 October 15th response, UMass argues the following under Exemption (f), If such records exist, as a general matter they are investigative records that are exempt from disclosure under G. L. c. 4, § 7(26)(f). The records request does not set forth a time frame, but G. L. c. 4, § 7(26)(f) applies not only to ongoing matters, but also indefinitely if disclosure would be prejudicial to future law enforcement activities. Although UMass reiterates in its October 15th response that the requested records are investigative records, it remains unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally unclear from UMass’ response whether the records contain confidential investigative techniques. UMass also did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). Reinstein, 378 Mass. 289-290 (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). Further, UMass did not identify the types of records in its possession that are responsive to the request. 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); 950 C.M.R. 32.06(3)(c)(4). Here, UMass withheld responsive records without identifying each of the records. Therefore, UMass must identify the record(s) it has in its possession that UMass withheld under Exemptions (a), (c), and (f). Conclusion Accordingly, UMass is ordered to provide Mr. Gerhardson 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. Mr. Gerhardson may appeal the substantive nature of UMass’ response within 90 days. See 950 C.M.R. 32.08(1).

Christine M. Wilda SPR25/3129 Page 7 November 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson