Joshua Miller v. University of Massachusetts - Amherst (SPR 20190921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2019 SPR19/0921 Edward 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. Blagusezewski: I have received the petition of Joshua Miller of the Boston Globe appealing the response of the University of Massachusetts - Amherst (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 "any/all emails and text messages created between Feb. 1, 2019 and March 10, 2019, including Feb. 1 and March 10, 2019 sent to Kumble R. Subbaswamy that include the word 'favor,' 'help,' or 'behalf.' On information and belief, Subbaswamy uses multiple emails including but not limited to swamy@umass.edu and chancellor@umass.edu." The University responded on May 8, 2019 by providing some responsive records and claiming Exemptions (c), (d), (f), and (u) of the Public Records Law and the common law attorney-client privilege apply to withhold other records. Requirements for an appeal Mr. Miller is reminded the requirements for an appeal include providing this office with a copy of the letter by which the request was made and, if available, a copy of the letter by which the custodian responded. The Supervisor shall accept an appeal only from a person who had made his or her record request in writing. An oral request, while valid as a public record request pursuant to 950 CMR 32.06(l)(a), may not be the basis of an appeal under 950 C.M.R. 32.08. See 950 C.M.R. 32.08(l)(g). In its May 3th response, the University quotes Mr. Miller's request and indicates it was received on March 21, 2019. Although Mr. Miller states in his petition for appeal that his "previous interaction with [the University] was SPR 18/1407," based on the request language provided by the University in its May 3th response and my review of the SPR18/1407 case file, it appears that SPR18/1407 relates to a different request dated August 29, 2018. See SPR18/1407 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

Edward Blaguszewski SPR19/0921 Page2 May 22, 2019 Determination of the Supervisor of Records (October 3, 2018). As such, I will consider this appeal, SPR19/0921, the first appeal related to the request quoted above. For any future petitions for appeals, Mr. Miller must include a copy of his original request. 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, § IOA(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In its May 8th response, the University indicates that it is providing Mr. Miller with "254 pages of documents as well as 15 related attachments that are responsive and not subject to any exemption or applicable privilege or protection." The University indicates it is withholding other responsive records pursuant to Exemptions (c), (d), (f), and (u) of the Public Records Law and the common law attorney-client privilege. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exempt10ns upon which the w1thholdmg 1s based ... "); 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 (c), (d), (f) and (u) 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. Additionally, the University has not identified the records, categories ofrecords or portions of

Edward Blaguszewski SPR19/0921 Page 3 May 22, 2019 records in its possession that are responsive to Mr. Miller's request. See G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). As a result, I find that the University has not satisfied 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. Order Accordingly, the University is ordered to provide Mr. Miller with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller