Eoin Higgins v. University of Massachusetts - Amherst (SPR 20211331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2021 SPR21/1331 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340 Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Eoin Higgins appealing the response of the University of Massachusetts Amherst (UMass) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 23, 2020, Mr. Higgins requested: [A]ll emails and attachments from July 22, 2019 to September 8, 2020 from [2 named individuals] having to do with the CD-1 race, [named individuals] and the local, state, college, and national Democratic Party in their capacities as members of the UMass College Democrats and within UMass student government. This includes, but is not limited to, any and all emails and attachments from the personal college emails of [the named individuals and specified email addresses] pertaining to, from, or addressed to [13 identified custodians]. Previous appeals This request was the subject of previous appeals. See SPR20/2432 Determination of the Supervisor of Records (December 22, 2020); SPR21/0047 Determination of the Supervisor of Records (January 22, 2021); SPR21/0298 Determination of the Supervisor of Records (February 22, 2021); SPR21/0566 Determination of the Supervisor of Records (March 23, 2021); and SPR21/0899 Determination of the Supervisor of Records (April 22, 2021). In my April 22nd determination, I directed UMass to clarify whether it possesses responsive records. Accordingly, UMass was ordered to provide Mr. Higgins with a response. Subsequently, UMass provided a response on May 14, 2021. Unsatisfied with UMass’ response, Mr. Higgins petitioned this office and this appeal, SPR21/1331, was opened as a result. 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

Christine M. Wilda SPR21/1331 Page 2 June 10, 2021 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, § 10A(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. UMass’ May 14th response In its May 14, 2021 response, UMass states that its January 7, 2021 response indicated that “. . . (i) as a practical matter, no search could be conducted because the request was very broad and (ii) as a legal matter, no search would be conducted because the request seeks records that do not fall under the statutory definition of ‘Public Records’ as set forth by G.L. c. 4, § 7(26). . . .” UMass further reiterates, “. . . students are not employees or officers as set forth by the public records statute. This specific designation - employee or officer - is a fundamental, threshold and necessary requirement for the public records law to apply. As such, the public records law does not apply to the requester’s request.” Despite UMass’ response, it remains unclear whether it possesses records responsive to the request. UMass is advised that as a custodian of records, it has an obligation to identify the records in its possession. To comply with the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Further, an agency 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. See G. L. c. 66, § 10(a)(vii). In camera inspection In order to facilitate a determination as to the public nature of the requested records, as well as the applicability of UMass’ previous Exemption (a) claim to withhold the records in their entirety, UMass must provide this office with un-redacted copies of the responsive records for in

Christine M. Wilda SPR21/1331 Page 3 June 10, 2021 camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to UMass’ custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, UMass is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins