Matt Berg v. University of Massachusetts - Amherst (SPR 20211366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2021 SPR21/1366 Christine M. Wilda Associate Chancellor for Compliance UMass Amherst 340 Whitmore Building 181 President's Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Matt Berg of Massachusetts Daily Collegian, appealing the response of UMass Amherst (UMass) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2021, Mr. Berg requested, “[e]mails between university employees regarding an investigation into a fraternity.” Previous appeal This request was the subject of a previous appeal. See SPR21/1138 Determination of the Supervisor of Records (May 14, 2021). On May 21, 2021, UMass responded. Unsatisfied with the UMass’ response, Mr. Berg appealed and SPR21/1366 was opened as a result. 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(d)(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 exemptions upon which the withholding is based…”); 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). 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 SPR21/1366 Page 2 June 14, 2021 Current Appeal In his appeal, Mr. Berg states, “[a]fter identifying 370 records that pertain to my request, the records supervisor failed to provide the vast majority of the records or a description of them, instead providing just 25 records — many of which had been provided to me previously.” Despite UMass’ response, it remains unclear if UMass possesses additional records that have been previously identified. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). UMass must clarify whether additional responsive records exist. Conclusion Accordingly, UMass is ordered to review the request and provide a response to Mr. Berg made in accordance with the Public Records Law, its Access Regulations and this order within 10 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: Matt Berg