Melissa Ptacek v. Middlesex Community College (SPR 20181012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 24, 2018 SPR18/1012 Patrick E. Cook Records Access Officer Executive Director of Public Affairs Middlesex Community College 33 Kearney Square Lowell, MA 01852 Dear Mr. Cook: I have received the petition of Melissa Ptacek appealing the response of the Middlesex 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 responded on June 27, 2018 by denying access to records under Exemptions (a), (b), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a)-(c), (f). 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)(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). Current appeal 11 In its June 2i 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 CPR Part 99; M.G.L. Chapter 66A; and/or M.G.L. Chapter 4, Section 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

Patrick E. Cook SPR18/1012 Page2 July 24, 2018 7 (26) (b) (c) and (f)." In her appeal Ms. Ptacek notes "[t]he records I am requesting can be redacted of name, birth date, and other types of information that would identify parties involved." 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, § lO(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, 378 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 disclosure. G. L. c. 66, § 10(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.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Melissa Ptacek