Gabriel Schmitt v. University of Massachusetts - Amherst (SPR 20192022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 10, 2019 SPR19/2022

Brian W. Burke, Esq.

Senior Counsel - Amherst

Office of the General Counsel

University of Massachusetts Amherst

309 Whitmore Administration Building

Amherst, MA 01003

Dear Attorney Burke:

I have received your petition on behalf of the University of Massachusetts Amherst (University) seeking an extension of time to furnish copies of a requested record, or any portion thereof. G. L. c. 66, § 10(c). Gabriel Schmitt requested several categories of records including minutes, emails, employment contracts, press releases, and certain financial documents. This request was the subject of an appeal with this office. See SPR19/ 1688 Determination of the Supervisor of Records (September 3, 2019),

Petition for an Extension of Time

Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cé cause, the Supervisor shall consider, but shall not be limited to considering:

(i) the need to search for, collect, segregate or examine records;

(ii) the scope of redaction required to prevent unlawful disclosure;

(iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension;

(iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests;

(v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure.

G. L. c. 66, § 10(c).

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

Brian W, Burke, Esq, SPR19/2022 Page2 October 10, 2019

Current Petition

I understand that Mr. Schmitt submitted the requests between August 6, 2019 and August 18, 2019. The University provided a response on August 16, 2019, indicating that responsive records contain information exempt under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). The University also provided a cost estimate.

Mr. Schmitt appealed the August 16" response and SPR19/1688 was opened as a result. © See SPR19/1688 Determination of the Supervisor of Records (September 3, 2019). In my September 3" determination I found that whereas Mr. Schmitt has indicated his willingness to pay the $4,900 fee estimate and the University is yet to produce the responsive records, Mr, Schmitt’s appeal was premature and the matter could not be addressed at that time as the content of these records was unclear.

The University submitted the current petition for an extension of time to produce records on October 3, 2019. In this petition the University explains that on August 27, 2019, the University submitted a petition to this office seeking a determination pursuant to G. L.c. 66 § 10(c) that it be relieved of its obligation to provide certain records to Mr. Schmitt, You assert that “[o]n September 27, 2019, your office confirmed that it believed the University’s petition was moot due to the fact that the requester's appeal was closed.” You further indicate that “[g]iven this recent confirmation from your office, pursuant to G.L. c. 66 §10(c), the University respectfully requests an additional twenty (20) business days to respond to the requester’s public records requests,” .

With respect to the timeframes for submitting a petition for an extension of time to produce records, G. L. c. 66, § 10(c) provides the following:

-.. arecords access officer may, as soon as practical and within 20 business days after initial receipt of the request, or within 10 business days after receipt of a determination by the supervisor of public records that the requested record constitutes a public record, petition the supervisor of records for an extension of the time for the agency or municipality to furnish copies of the requested record, or any portion of the requested record, that the agency or municipality has within its possession, custody or control and intends to furnish.

G. L. c. 66, § 10(c).

Mr. Schmitt submitted the requests at issue between August 6" and August 18", My determination in SPR19/1688 was sent to the parties on September 3, Further, the September 34 determination did not find that “the requested record constitutes a public record” as provided for in G. L, c, 66, § 10(c). The University submitted the current petition to this office on October 3", Although the University refers to communications with this office on September 27", I decline to opine on the University’s petition for an extension of time to produce records because . it has not shown that it complied with the timeframes outlined in G, L. c. 66, § 10(c).

Brian W. Burke, Esq. SPR19/2022 Page 3 October 10; 2019

Conclusion

For the reasons described above, I decline to opine on the University’s petition for an extension of time to produce records, The University is advised it must provide the records in a manner consistent with the Public Records Law and its Regulations. To the extent possible, the University must provide responsive records on a rolling basis. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay); see also G. L. c. 66, § 10(b)(vi) (the requestor may voluntarily agree to a response date beyond the timeframes set forth herein).

Sincerely,

Lo lweco Wumary

Rebecca S, Murray Supervisor of Records

cc: Gabriel Schmitt