Norbert Tschakert v. Salem State University (SPR 20201786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1786 Rita P. Colucci, Esq. General Counsel Salem State University 352 Lafayette Street Salem, MA 01970 Dear Attorney Colucci: I have received the petition of Norbert Tschakert appealing the September 21, 2020 response of Salem State University (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Initially, Mr. Tschakert requested records on May 20, 2020, and was provided records. On June 18, 2020, Mr. Tschakert’s union representative, Roberta A. James, Esq. at the Division of Higher Education and the Massachusetts Teachers Association (the Union), requested records on behalf of Mr. Tschakert. In the June 18th request, Attorney James on behalf of Mr. Tschakert advised the University to provide communications identified in the request, to which Mr. Tschakert was not already a party and were sent and received from April 1, 2018 to June 18, 2020. Attorney James’ June 18th request included over two (2) years of communications sent and received by ten (10) identified individuals, involving thirty-seven (37) specifically-stated subject matters. In the June 18th request, Attorney James provided fifty-one (51) key words that the Union and Mr. Tschakert asked the University to utilize in searching for further email communications. In response to the June 18th request, the University provided further records and responses, on June 26, 2020; July 21, 2020; August 26, 2020; August 31, 2020, and September 21, 2020. After receiving the University’s September 21st response, Mr. Tschakert appealed to the Supervisor of Records (Supervisor) again, and the current appeal, SPR20/1786, was opened. In his September 23, 2020 petition, Mr. Tschakert objects to: 1. How email records were searched by the University, and requests that the Supervisor order the University to redo the search and compilation of all his requests for emails, and also order the University to engage an independent party to search for and compile the emails; and, 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

Rita P. Colucci, Esq. SPR20/1786 Page 2 October 7, 2020 2. Mr. Tschakert complains that the University was delinquent by not providing him with requested records within 10 business days; therefore, the Supervisor should order the University to reimburse Mr. Tschakert for the payment paid from the fee estimate provided. As a result of the University’s August 26, 2020 response, including a fee estimate and an August 31, 2020 production of records, Mr. Tschakert petitioned the Supervisor on September 3, 2020, and appeal SPR20/1593 was opened. In his September 3rd petition to the Supervisor, Mr. Tschakert asked the Supervisor to review the fee estimate provided. However, while appeal SPR20/1593 was pending and before the conclusion of the 10-day timeframe for the Supervisor to render a determination on Mr. Tschakert’s petition concerning the fee estimate, Mr. Tschakert paid the fee and received records. In your September 21, 2020 response, you explained that the University used two separate methods to search for and compile records. The University engaged its Information Technology Department to search for the records using both the specific requests made and the key words/names of individuals Mr. Tschakert sought records from. The University also had the individuals named in Mr. Tschakert’s requests search their email programs to cull the particular records request. Status of the requestor/unique right of access In his petitions to this office, Mr. Tschakert has indicated that he seeks the records due to his status as a person who is trying to defend himself in an underlying matter currently being investigated. Therefore, Mr. Tschakert believes he should have access to records to defend himself. This office advises Mr. Tschakert again, as in prior determinations, that the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested under the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Tschakert and that of his union representative’s purpose in making the request has no bearing on the public status of any existing responsive records. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access

Rita P. Colucci, Esq. SPR20/1786 Page 3 October 7, 2020 to the record through statutory, regulatory, judicial or other applicable means.") 950 C.M.R. 32.08(1)(a). As such, Mr. Tschakert should consider another means of seeking to obtain any additional existing responsive records. This office has become aware that during the pendency of this appeal the parties have been exchanging communications regarding any outstanding requests and issues, including any additional requests. Whereas the parties continue to communicate to resolve any outstanding issues over additional responsive public records that the University may have in its possession, I advise the parties to continue to do so. Conclusion Accordingly, I will consider this appeal closed. If additional issues remain, Mr. Tschakert may file a further appeal. Sincerely, Rebecca S. Murray Supervisor of Records cc: Norbert Tschakert