Colman Herman v. University of Massachusetts - President's Office (SPR 20181879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 17, 2018 SPR18/1879 Christine M. Wilda University of Massachusetts Amherst 374 Whitmore Building Amherst, MA O1 003 Dear Ms. Wilda: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "any and all communications related to [an identified event] that are in the files of the UMass Amherst administration" and "the UMass Amherst police." The University responded to his request by providing 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, § 1 OA( 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Christine M. Wilda SPR18/1879 Page2 December 17, 2018 Additional responsive records In his petition for appeal, Mr. Herman includes his communications with the University. Within those communications, Mr. Herman requests that the University search for additional responsive records. In response, the University indicates that it "did check in again and was told much of the conversations were in person or by phone." Mr. Herman requests that this "office investigate whether what [the University] is stating is accurate." 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Subsequent to the intervention of a Public Records Division staff attorney, I learned the University confirmed it provided Mr. Herman with all the responsive records in its possession and confirmed it does not possess any additional responsive records. Conclusion Accordingly, I find the University has met its burden in responding to this request. I will now consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman