Melissa Ptacek v. Holyoke Community College (SPR 20180999)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2018 SPRlS/999 William J. Fogarty Vice President for Finance & Administration Holyoke Community College 303 Homestead Avenue Holyoke, MA O1 040 Dear Mr. Fogarty: I have received the petition of Melissa Ptacek appealing the response of the Holyoke Community College (College) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ptacek requested "[r]ecords relating to complaints filed with HCC's Affirmative Action Office/Title IX Office (and related offices/individuals) for the past 10 academic years." The College initially responded on July 2, 2018 by denying access to records under Exemptions (a), (b), (c), and (f). G. L. c. 4, § 7(26)(a)-(c), (f). The College provided a supplemental response on July 17, 2018. 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, § 1O (b )(iv) (written response must "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 ... "); 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). 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

William J. Fogarty SPR18/999 Page 2 July 24, 2018 Current appeal In its July 211 d response the College asserted "[p] lease be advised that the records you have requested are exempt from disclosure pursuant to: Family Educational Rights and Privacy Act, 20 U.S.C; 1232 g; 34 CFR Part 99; M.G.L. Chapter 66A; and/or M.G.L. Chapter 4, Section 11 7 (26) (b) (c) and (f)." In the College's July 2i response you indicate that it "stands by those exemptions in spite of her appeal." In a July 18, 2018 email Ms. Ptacek notes "I am not asking for any information that identifies anyone and have noted to him that it is possible to redact the protected information." It is not clear which responsive records, if any, the College possesses. G. L. c. 66, § 1O (b) (iv) (written response must "identify any records, categories ofrecords or portions ofrecords 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 ... "). Further, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The College did not meet its burden of demonstrating how the records are exempt, in their entirety, See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (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 diselosure. G. L. e. 66, § 1O (a). Conclusion Given that the College did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the College is ordered to provide Ms. Ptacek with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. 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.rna.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Melissa Ptacek