Colman Herman v. University of Massachusetts - President's Office (SPR 20190243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2019 SPR19/0243 Christine M. Wilda University of Massachusetts - Amherst 374 Whitmore Building 181 Presidents Drive 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, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Herman requested "electronic and hard copies of any and all communication related to the departure of [an identified individual]." The University denied his request claiming the responsive record is exempt from disclosure pursuant to Exemptions (a), (c) and (d), the Fair Information Practices Act and common law attorney-client privilege. G. L. c. 4, § 7(26)(a), (c), (d); G. L. c. 66A. 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. 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 SPR19/0243 Page 2 February 22, 2019 Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § IO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The University's response did not contain the specificity required in a denial of access to public records. Instead, the University's response merely cites Exemptions (a), (c), (d), the Fair Practices Information Act and the common law attorney-client privilege without any further explanation as to the exemptions' applicability to the requested records. The University is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the University did not satisfy its burden in responding to this records request. The University is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Given that the University has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the University is ordered to review the records, redact where necessary, and provide Mr. Herman with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. The University may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman