Eoin Higgins v. University of Massachusetts - Amherst (SPR 20212270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2270 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); SPR21/0899 Determination of the Supervisor of Records (April 22, 2021); SPR21/1331 Determination of the Supervisor of Records (June 10, 2021); and SPR21/1636 Determination of the Supervisor of Records (July 19, 2021). In my July 19th determination, I directed UMass to clarify whether responsive records exist. Accordingly, UMass was ordered to provide Mr. Higgins with a response. Subsequently, UMass provided a response on August 18, 2021. Unsatisfied with UMass’ response, Mr. Higgins petitioned this office and this appeal, SPR21/2270, 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 Wilda SPR21/2270 Page 2 September 20, 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’ August 18th response In its August 18, 2021 response, UMass asserts “[a]s stated in previous responses, all of the records being sought are student records, which are protected under FERPA. Therefore, we will not perform the search.” In my July 19th determination, I stated the following: “Public records” is broadly defined to include “. . . all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32, unless such materials or data fall within a [statutory exemption].” G. L. c. 4, § 7(26). In light of the above, it is unclear how the records fall outside the definition of public records. It is our understanding that the records pertain to members of the student government. Particularly, individuals in their “capacities as members of the UMass College Democrats and within UMass student government.” As such,

Christine Wilda SPR21/2270 Page 3 September 20, 2021 it is unclear how the requested email records were not created or received by an “officer or employee of any agency. . .” UMass must clarify this matter . . . [and] clarify whether responsive records exist. Order Accordingly, UMass is again ordered to provide Mr. Higgins a response in a manner consistent with this order, the July 19th order, the Public Records Law, and its Regulations within five (5) 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. Failure to comply with this order may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, § 10A (b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins