Richard Maximus Strahan v. University of Massachusetts - Boston (SPR 20181326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 13, 2018 SPR18/1326 Matt Fenlon Public Records Administrator University of Massachusetts - Boston 100 Morrissey Boulevard Boston, MA 02125-3393 Dear Mr. Fenlon: I have received the petition of Richard Maximus Strahan appealing the response of the University of Massachusetts Boston (University or UMB or UMass Boston) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 17, 2018 Mr. Strahan requested four categories of records related to a certain incident that occurred at the University. The University responded on June 15, 2018 by providing a fee estimate for the production of records. This request was the subject of a previous appeal. See SPRl 8/879 Determination of the Supervisor of Records (June 29, 2018; July 26, 2018). The University responded to the July 26th order on August 9, 2018. Mr. Strahan appealed and SPRl 8/1326 was opened as a result. On July 2, 2018 Mr. Strahan also requested any record that establishes that: 1. Any deputized UMB security employee like Donald Baynard and/or Paul Padon has authority under law to on his own volition to issue any member of the Public a lawful trespass notice pursuant to GL Ch. 266 § 120 to permanently ban that person from entering upon any UMB property in the future. 2. The UMB Chancellor has delegated to some other named UMB employee the authority to ban any member of the Public from entering upon UMB property. This request was also the subject of a previous appeal. See SPRl 8/1060 Determination of the Supervisor of Records (August 1, 2018). The University responded to the August 1st order on August 14, 2018. 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

Matt Fenlon SPR18/1326 Page 2 September 13, 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, § 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. Current appeal Existence ofr esponsive records In its August 14th response regarding Mr. Strahan's July 2nd request, you assert "UMass Boston can confirm that it is not in possession of any document issued by the UMB Chancellor that authorizes UMB 'cops' on their own to issue trespass notices." In light of this response, it appears the University does not possess responsive records. 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 at the time of the request. See G. L. c. 66, § lO(a)(ii). Fee estimate i 11 The University's August 9th response to the May 1 request explains "UMass Boston has already completed the search for the records requested by Mr. Strahan. Upon receiving Mr. Strahan's initial request, UMass Boston's Department of Public Safety identified the requested records, which in total include 81 potentially responsive reports consisting 254 pages." You also note that "each report would need to be reviewed individually and redactions as necessary to protect the privacy of witnesses and victims identified in the reports. Our good faith estimate includes 2 hours to un-staple and photocopy each report and then re-staple and return each report to its original file for organization. It would then take an average of 8-10 minutes to thoroughly review each report, for any necessary redactions, totaling 12 hours." With respect to the need to redact information within the responsive records, you assert "[t]he reports requested by Mr. Strahan include student data, including social security numbers, because students were, on occasion, victims and witnesses to Mr. Strahan' s offensive behavior. As you likely know, the Family Educational Rights and Privacy Act defines 'education record' very broadly as '(1) directly related to a student; and (2) maintained by an educational agency or

Matt Fenlon SPR18/1326 Page 3 September 13, 2018 institution.' Thus, almost any student data contained in the requested documents could implicate FERPA and will necessitate redaction." In his appeal petition Mr. Strahan indicates "[t]he reality is almost all of the sought for public records involve complaints and reports from UMB employees and only one or two based on a complaint involving a student. FERP A is not an issue in almost all the requested records." In camera review It is my determination that an in camera inspection of the responsive records would facilitate a determination as totllernasonableness-0-f'-the-fee-estimate,-s-pecificall-y-it-would.shed .. light on the extent to which redactions are required by law. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion Accordingly, the University is ordered to provide this office with an umedacted copy of the responsive records without delay. The University may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. The University must also explain whether it responded to Mr.

Matt Fenlon SPR18/1326 Page 4 September 13, 2018 ih Strahan's May 1 request in a manner consistent with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)( C) . Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan