Scott K. Semple, Esq. v. University of Massachusetts - Lowell (SPR 20192184)

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

Rebecca S, Murray Supervisor of Records

November 7, 2019 SPR19/2184

Gary Nolan

University of Massachusetts - Lowell

600 Suffolk Street, Suite 415

Lowell, MA 01854-5112

Dear Gary Nolan:

I have received the petition of Attorney Scott K. Semple of Davagian Grillo & Semple LLP appealing the response of the University of Massachusetts-Lowell (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically on May 10,

2019 Attorney Semple requested seven categories of records concerning the University and its staff.

Public Records

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records, G. L. c. 66, § 1OA(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, § 10(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.

Current Appeal

In an email to this office dated October 24, 2019, Attorney Semple writes, “I have attached the most recent communications:

1. June 13, 2019 email from Gary Nolan (UMass)

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

Gary Nolan SPR19/2184 Page 2 November 7, 2019

2. August 21, 2019 email from me to UMass counsel Maria Sheehy stating: ‘IFCC submitted a public records request, paid $750.00 per UML’s request in advance of any response, and UML has produced nothing, and has given no indication that it has even conducted a search’

3. August 21, 2019 voicemail from UMass counsel Maria Sheehy in reply to my August 21, 2019 email, stating, starting at the 0:22 mark: ‘I wanted to let you know that I have called the UMass Lowell campus to find out why you have not received a response to your public record request, because I did know they were working on that, so lam surprised that you haven’t received something. So I am happy to check on that for you.”

Attorney Semple further notes, “[n]o communication since then, other than motion papers exchanged in litigation whereby I reiterate that UMass has failed to produce anything in reply to the public records request. My client would like the production ASAP as required by law, and as has been paid for.”

_ Ina response dated November 7, 2019, the University states, “[t]he University of Massachusetts Lowell is currently reviewing and preparing to disseminate the requested public records in accord with M.G.L. c. 4. s.7. In order to explain the delay in production of the requested records, the University notes that compliance with the public records law in this instance has been extremely burdensome and demanded the University’s expenditure of time, materials and resources far in excess of the costs reimbursed by the requester. In addition, inadvertent miscommunication, personnel changes and staffing issues at the time of this public record request have contributed to this delay. The University is now endeavoring to accelerate review and dissemination of the requested public records. It is the University’s hope to expeditiously produce the requested public records.”

Conclusion

This office encourages Attorney Semple and the University to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any updated fee estimate by the University must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Bljera

Rebecca S, Murray Eevee. Muna,

Supervisor of Records ce: Scott K. Semple, Esq.