Thomas Relihan v. Bridgewater State University - Office of the President (SPR 20170165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 14, 2017 SPR17/165 James B. Cox, Esq. Rubin and Rudman, LLP 50 Rowes Wharf Boston, MA 02110 Dear Attorney Cox: I have received the petition of Thomas Relihan of The Enterprise News appealing the response of your client, Bridgewater State University (University) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Relihan requested a copy of: "Emails, memos and/or other correspondence between Judith Ritacco, the former Director of the University's daycare center, Brian Salvaggio, the former Vice President of Student Affairs and current Director of Talent Development and Communications, and/or Fred Clark, former Vice President and current President, between March 10, 2015 and April 10, 2015 referencing or related to any of the following: the daycare center, Kyle Loughlin, mandated reporters, the Department of Children and Families, the Department of Early Education and Care, sexual assault and the words 'parents,' 'concerns,' or 'inappropriate,' and including responsive records resulting from any combination of these individuals" Response by University and basis of the appeal On January 27, 2017, the University provided Mr. Relihan with records responsive to his request, and waived all applicable fees in the Public Records Law. The University also withheld portions ofrecords and withheld some records in their entirety pursuant to Exemptions (a), G. L. c. 41 §§ 97D, 98F; 20 U.S.C. § 1432g Family Educational Rights and Privacy Act of 1974 (FERPA); Exemption (c); Exemption (f) and the common law attorney client privilege. Mr. Relihan has appealed the exemptions claimed in the University's January response. Appeal to the Supervisor I You informed this office that the University's records access officer did not receive a copy of Mr. Relihan's petition to Supervisor of Records (Supervisor) requesting an 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

James B. Cox, Esq. SPRl 7/165 Page 2 February 14, 2017 administrative appeal. An attorney on my staff provided you with a copy of the appeal file via email. Mr. Relihan is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the records access officer associated with such petition. 950 C.M.R. 32.08(1)(h) (January 1, 2017 Ed.). 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, § lOA(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 town 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, §§ lO(b), 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). The University's January 2J1h response cites several exemptions in the Public Records Law to withhold redacted content from records and to withhold some records in their entirety. To meet the specificity requirement under the Public Records Law, a records' access officer must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of each individual responsive record. See G. L. c. 66, §§ lO(b), 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). When claiming the common law attorney client privilege to withhold communications offering advice to a client from his/her attorney, the records access officer shall provide in its written denial a detailed description of the record, including the names of the author and recipients, and in general terms, the subject matter of the withheld information. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007); see also 950 C.M.R. 32.06(3 )(d ). In a February 13th discussion with an attorney on my staff, you have agreed to provide Mr. Relihan with a more detailed, supplemental response to support the common law attorney client privilege and the exemptions in the Public Records Law claimed by the University. Accordingly, whereas the University has promised to provide a supplemental response to support its exemption claims, I will consider this appeal closed with the proviso that the University provides Mr. Relihan with the response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such

James B. Cox, Esq. SPRl 7/165 Page 3 February 14, 2017 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. ~ l y ~ Rebecca S. Murray Supervisor of Records cc: Thomas Relihan