Benyamin Claxton v. Massachusetts Maritime Academy (SPR 20212421)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2021 SPR21/2421 Elizabeth C. Benway Dean of Human Resources and Equal Opportunity & Diversity Records Access Officer Massachusetts Maritime Academy 101 Academy Drive Buzzards Bay, MA 02532 Dear Dean Benway: I have received the petition of Benyamin Claxton appealing the response of the Massachusetts Maritime Academy (Academy) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2021, Mr. Claxton requested the following: [R]ecords:, emails, texts, memos or notes, minutes of meetings, between any faculty, vendor and any member of Board of Trustees, any government vendor, supplier or any entity which pays for services conducted with [the Academy], support staff to [the Academy] that name ‘Benyamin Claxton’ or any personal identifier specific to me, to include any record, including those held under an abeyant investigation or prosecution, between [named individuals] and/or Follet Inc., any Cadet or any unidentified persons that communicate the name Ben Claxton, To include or any identifier that relates to my name and likeness. I request I [be provided] these records from July 2021 to present. . . . The Academy provided Mr. Claxton with a response on September 20, 2021. Unsatisfied with the Academy’s response, Mr. Claxton petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Purpose of request; identity of requestor Please note 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 pursuant to 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 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

Elizabeth C. Benway SPR21/2421 Page 2 October 5, 2021 (1976). Accordingly, Mr. Claxton’s purpose in making the request has no bearing on the public status of any existing responsive records. 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. The Academy’s September 20th response In its September 20, 2021 response, the Academy states “[g]iven the voluminous nature of the request, I am requesting that the scope of the request be modified to ensure efficiency in records collection and timely delivery of the records to you. For example, every email that includes your name (including those sent to your email) will need to be read and redacted since they are FERPA protected. It is unknown to me how many emails contain your name, so I am requesting, both, clarification and narrowing of your request.” The Academy also requested a 14- day extension of time to produce the records, and once the scope of the request is better understood, a fee estimate will be provided. Please be advised that it is valid for the custodian of records to 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 or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Given the expansiveness of his request, Mr. Claxton is encouraged to provide the Academy with the needed clarification regarding the request. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought). Mr. Claxton may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § 10(a)(i). The Academy must use its knowledge of the records to facilitate the provision of any responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii).

Elizabeth C. Benway SPR21/2421 Page 3 October 5, 2021 In its September 20, 2021 response, the Academy did not provide Mr. Claxton with a fee estimate. If the Academy seeks to assess any fees to provide the responsive records, Mr. Claxton must be provided with a fee estimate in compliance with the Public Records Law and its Regulations. 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. While Mr. Claxton informed this office in his petition that he is appealing fees; however, since the Academy has yet to assess any fees to produce the records, I decline to opine on fees at this time. During this appeal, you informed this office that the Academy has conducted an initial search for emails that may be responsive to Mr. Claxton’s request. However, it is unclear whether the Academy possesses any additional records beside the emails, that may be responsive to Mr. Claxton’s request. Particularly, the Academy must clarify whether it possesses texts, memos or notes, or minutes of meetings, as reflected in Mr. Claxton’s request. Mr. Claxton also objects to the Academy asking for a 14-day extension of time to produce the records. Under the Public Records Law, the Records Access Officer must “identify a reasonable timeframe in which the agency…shall produce the public records sought: provided that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records…” G. L. c. 66, § 10(b)(vi). To the extent possible, the Academy must provide responsive records on a rolling basis. Conclusion Accordingly, the Academy is ordered to provide Mr. Claxton with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations 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: Benyamin Claxton