Lisa Ducharme v. Westfield State University (SPR 20190346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 28, 2019 SPR19/346 Tricia Oliver Westfield State University 333 Western Ave Westfield, MA O1 086 Dear Tricia Oliver: I have received the petition of Lisa Ducharme appealing the response of Westfield State University (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Lisa Ducharme requested a copy of the University's compensation practices. Previous appeals This request was the subject of previous appeals. See SPR19/092 Determination of the Supervisor of records (January 29, 2019); SPR18/2057 Determination of the Supervisor of Records (December 26, 2018). In SPR19/092, I found that it remains unclear whether the University possesses a copy of the University's compensation practices. Accordingly, I ordered the University to provide Ms. Ducharme with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. It is my understanding that on February 13, 2019, the University provided Ms. Ducharme a revised response to her request for records. Unsatisfied with the University's response, Ms. Ducharme petitioned this office and as a result SPRl 9/346 was opened. 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 dyfined 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). 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

Tricia Oliver SPR19/346 Page 2 February 28, 2019 Current Appeal In the February 13th letter to Ms. Ducharme, the University states, "[t]o clarify: The University's compensation practices are set forth in the respective collective bargaining agreements (provided to Ms. Ducharme on Dec. 6). There are no additional documents that are responsive to her Nov. 22 Public Record Request; specifically, there is no document in the University's possession that specifically memorializes 'the University's compensation practices,' other than what has already been provided." In her appeal dated February 13, 2019, Ms. Ducharme states, "I reviewed the AP A agreement (which is the union I am in) that they provided, and nowhere does it reference $1,000 for getting your Master's Degree, this is the one reference that I have continually used, as the only compensation practice, I was aware of." Ms. Ducharme further writes, "[o ]n January 31, 2019, I received notification of the results for my pay increase request. The reference in the letter from Dr. Prusank, is Article VI (B) (2). This is not the reference WSU provided in their response. However, this reference also does not list $1,000, but it does list that you can get a pay increase for a degree ... Either WSU has a compensation practice or they don't. If they have one it would need to be documented because Dr. Williams stated all area VPs must consult with Human Resources to ensure consistency." Conclusion Please be advised, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). In the February 13th response, the University expressed that "[t]he University's compensation practices are set forth in the respective collective bargaining agreements (provided to Ms. Ducharme on Dec. 6)." The Department further confirmed that "there is no document in the University's possession that specifically memorializes 'the University's compensation practices." Whereas the University does not possess records responsive to Ms. Ducharme's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, ~~ Supervisor of Records

Tricia Oliver SPR19/346 Page 3 February 28, 2019 cc: Lisa Ducharme