Ryan P. Mulvey v. University of Massachusetts - Dartmouth (SPR 20180350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2018 SPRlS/350 John Hoey University of Massachusetts - Dartmouth Office of Public Affairs 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Hoey: I have received the petition of Ryan Mulvey, Esq. appealing the response of the University of Massachusetts Dartmouth (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 26, 2018, Attorney Mulvey requested "[a ]11 records concerning CoA Institute' s April 2017 comment, including but not limited to all correspondence between or amongst [an identified individual] and (1) members of the NEFMC or Mid-Atlantic Fishery Management Council; (2) officials, employees, or representative of NOAA; (3) officials, employees, or representatives of the Commonwealth of Massachusetts; or ( 4) any non-governmental third party." Attorney Mulvey indicated that in addition to email correspondence, responsive records should include "notes on the comment (handwritten or otherwise), memoranda, letters, meeting agendas, phone call notes, voice messages, text and instant messages, and desk calendar entries." Attorney Mulvey specified the time period as "April 11, 2017 to the present" and included specific search terms the University could use to locate the records. The University acknowledged receipt of the request on February 26, 2018 and provided a response on March 6, 2018, indicating it referred the request to the National Oceanic and Atmospheric Administration (NOAA). Unsatisfied with the University's response, Attorney Mulvey petitioned this office and this appeal, SPRl 8/350, 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, § 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). 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

John Hoey SPR18/2018 Page2 April 3, 2018 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)(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, § 1O (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 March 6th response In its March 6, 2018 response, the University indicated that "[g]iven that your request is related to National Oceanic and Atmospheric Administration, it should be treated as a request under the federal Freedom of Information Act. Therefore we have referred your request to NOAA." Compliance with the requirements ofp roviding a response A review of the documents submitted by Attorney Mulvey reveals that the University provided a response to Attorney Mulvey's February 26th request on March 6, 2018. In the March 6th response, the University indicated that because the request "is related to [NOAA]," it referred the request to that office. Although the University provided an initial response within ten business days, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a Records Access Officer's (RAO) written response must not only be provided within ten business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the

John Hoey SPR18/2018 Page 3 April 3, 2018 agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor ofrecords under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b). Despite the University's March 61 h response, it remains unclear how the University complied with the criteria required by an RAO in providing a response to a public records request. See id. Based on the University's response, it is uncertain whether the University possesses records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords atthe time of the request. See G. L. c. 66, § lO(a)(ii). Status as a public/state employee In his appeal, Attorney Mulvey indicates that the identified individual holds a position at the University, and also serves as a representative to the New England Fishery Management Council (NEFMC). Attorney Mulvey also asserts that the identified individual uses his or her University's e-mail address, for NEFMC's business. The University is reminded that the definition of a "public record" in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." As such, records created or received by the identified individual on his or her government email, are public records.

John Hoey SPR18/2018 Page 4 April 3, 2018 Requests for public records It should be noted that the Regulations establish that "a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters." 950 C.M.R. 32.06(1)(d). Accordingly, the University is advised that it may not require a requester to submit a public records request via its online "official channel." Subsequent appeal to the Supervisor of Records While this appeal was pending, this office was notified in a telephone conversation on April 3, 2018, that the University provided a response to Attorney Mulvey on March 23rd, which included responsive records. On March 28t\ Attorney Mulvey petitioned this office regarding the substantive nature of the University's March 23rd response. In this subsequent appeal, Attorney Mulvey disputes the adequacy of the University's search for responsive records claiming "there is no indication that the [identified individual] or the [University's] RAO-made any effort to search for other responsive records, including e-mail correspondence, hand written notes, memoranda, letters, meeting agendas, phone call notes, voice messages, text and instant messages, or desk calendar entries." In addition, Attorney Mulvey claims that "unidentified redactions may have been made without any statutory justification." Based on the University's response, together with Attorney Mulvey's petition, the adequacy of the University's search for responsive records and whether or not responsive records were redacted is unclear. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the University is hereby ordered to provide a response to the request, addressing the issues raised in Attorney Mulvey's appeal. If the records were produced in redacted form, the University must identify the claimed exemption and explain with specificity how the exemption applies to the redacted portions of the responsive records. Flatley, 419 Mass. at 511 (c ustodian has the burden of establishing the applicability of an exemption). Sincerely, ~~ Supervisor of Records cc: Ryan Mulvey, Esq.