Kate R. Cook, Esq. v. University of Massachusetts (SPR 20160761)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 5, 2016 SPR16/761 Mr. Peter Michelson Office of the General Counsel University of Massachusetts One Beacon St., 31st Floor Boston, MA 021 08 Dear Mr. Michelson: I have received the petition of Attorney Kate Cook appealing the nomesponse of the University of Massachusetts (University) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on June 14, 2016, Attorney Cook requested certain documents "collected or generated in connection with a report issued by the Office of the Inspector General." Other than a June 24, 2016letter acknowledging receipt of the request Attorney Cook has received no other substantive response from the University. 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, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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 ( c); see also District 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 ofthe responsive record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Peter Michelson SPR16/761 Page2 October 5, 2016 Present appeal This office received a September 30, 2016letter from you to Attorney Cook with respect to her request. This letter was sent by you subsequent to the September 22, 2016letter from this office acknowledging the opening ofSPR16/761, as well as two email communications from a member of my staff, dated September 22 and September 27, 2016 seeking an update with respect to this request. University fails to comply with timeliness requirements In your letter you note that Attorney Cook had not followed up with you directly regarding her request; however, this does not remove the obligation of the University to respond to a request for public records within ten (10) days. In your September 30 letter you fail to fully respond to the request, stating only that the request is "overly broad and vague," making it "virtually impossible to provide" responsive records. This is the response of the University after more than one-hundred (100) days. I find this response does not comply with the Public Records Law. Further, in your letter you request that this office decline to accept Attorney Cook's appeal pursuant to the Regulations with respect to records that "are the subjects of disputes in active litigation, administrative hearings or mediation." 950 C.M.R. 32.08(2). This request is denied. University fails to show request is "overly broad and vague" Attorney Cook's June 14 request references a "CMV License Agreement, effective April 23, 1990," a "CMV Research Agreement, effective April23, 1990," as well as amendments to the two agreements, "effective April9, 2001 and May 17, 2001," and "May 3, 1991" respectively. The University has failed to show how a request for records associated with these agreements and amendments are "overly broad and vague." In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). It is unclear why the University would be unable to respond to such a request, based upon the University's June 24 acknowledgment and September 30 letter. Order I find the University has failed to respond to a request for public records. Accordingly, the University is hereby ordered to review Attorney Cook's June 14 request and provide Attorney Cook with a substantive response to her four-part request, prepared in a manner

Mr. Peter Michelson SPR16/761 Page 3 October 5, 2016 consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. cc: Ms. Kate Cook, Esq.