Joshua Miller v. University of Massachusetts - President's Office (SPR 20181407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 3, 2018 SPRlS/1407 Ed Blaguszewski Executive Director of Strategic Communications and Special Assistant to the Vice Chancellor for University Relations UMass Amherst Munson Hall 101 Hicks Way Amherst, MA O1 003 Dear Mr. Blaguszewski: I have received the petition of Joshua Miller of the Boston Globe appealing the response of the University of Massachusetts -Amherst (UMass/University) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Miller requested "all emails and text messages between Kumble R. Subbaswamy and Stanley C. Rosenberg, from S~pt. 1, 2017 through August 29, 2018." Mr. Miller also requested "all call logs from any of Subbaswamy's phones that include outgoing or incoming calls from [an identified telephone number], one of Rosenberg's cellular numbers." UMass responded on September 14, 2018 by providing one responsive text message but denying access to other responsive records. 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); 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. 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

Ed Blaguszewski SPR18/1407 Page2 October 3, 2018 Appeal In its September 14th response UMass provided one text message thread "[f]or the period following Senator Rosenberg's resignation." With respect to additional responsive records, UMass indicates "[f]or most of the time period cited in your request, Sept. 1, 2017 through August 29, 2018, Stanley Rosenberg served as a state senator, until his resignation effective May 4, 2018." You also assert that "the University declines to produce the records that you have requested because they are correspondence with the Legislature. They are therefore not public records, as the Legislature is not an 'agency, executive office, department, board, commission, bureau, division or authority' within the meaning of G.L. c. 4, § 7. Records of the Legislature are also specifically exempted by statute from public disclosure by G.L. c. 66, § 18, which makes no distinction between records which the Legislature itself generates and papers which the legislature receives." In his appeal petition Mr. Miller notes "[t]he law exempts records kept by the Legislature. It does not exempt records kept by entities subject to the public records law. I seek a ruling that UMass make public the public records I have requested." Definition of "public records" As described in G. L. c. 4, § 7(26), "public records" are defined as: all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority oft he commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32, unless such materials or data fall within the following exemptions ... G. L. c. 4, § 7(26) (emphasis added). It is unclear how responsive records made or received by an officer or employee of UMass, an agency of the commonwealth, would not fall under the definition of public records articulated in G. L. c. 4, § 7(26). Specifically, UMass has not met its burden to show how "all emails and text messages between Kumble R. Subbaswamy and Stanley C. Rosenberg ... " and "all call logs from any of Subbaswamy's phones ... " that were made or received by UMass are not "public records" as described above.

Ed Blaguszewski SPR18/1407 Page 3 October 3, 2018 Conclusion Given that UMass did not meet its burden to explain how an exemption applies to the records, UMass is ordered to review the records, redact where necessary, and provide Mr. Miller 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. UMass may file a request for reconsideration of this determination within 10 business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller