Benyamin Claxton v. Massachusetts Maritime Academy (SPR 20212663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2021 SPR21/2663 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). Specifically, 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 the previous appeal, SPR21/2421, was opened. Previous appeal and determination The request was the subject of a previous appeal and determination by the Supervisor. See SPR21/2421 Determination of the Supervisor (October 5, 2021). In my October 5th determination, I advised due to the expansiveness of Mr. Claxton’s request, that Mr. Claxton was encouraged to provide the Academy with the needed clarification regarding his request. Mr. Claxton was also advised that he may narrow the parameters or include factors to enable the 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 SPR21/2663 Page 2 October 26, 2021 search to be processed more efficiently. In responding to this request, I also advised the Academy to use its superior knowledge of the records to facilitate the provision of any responsive records. In both its September 20th and October 8th responses, the Academy did not provide a fee estimate to provide the responsive records to Mr. Claxton. It is unclear whether the Academy has intended to assess any fees for producing the responsive records. No responsive records With regard to Mr. Claxton’s request for text messages, memos, notes and/or minutes of meetings, the Academy states in its October 8th response, “[the Academy] possesses no documents responsive to this request.” 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). Purpose of request; identity of requestor Mr. Claxton is again advised, 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 (1976). Accordingly, Mr. Claxton’s purpose in making the request and seeking a copy of the responsive records has no bearing on the public status of any existing responsive records. The current appeal The Academy provided an October 8, 2021 response, indicating, “… [the Academy] has identified over three thousand (3,000) emails to general student email accounts, list serve groups that include [Mr. Claxton’s name].” The Academy is withholding these email records in their entirety under the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g. The Academy is also withholding an investigatory report under both FERPA as it operates through Exemption (a) and Exemption (c) due to a student’s personal privacy. As a result of the October 8th response, Mr. Claxton petitioned the Supervisor, and the current appeal was opened. In his October 11th petition, Mr. Claxton objects to the notion that the Academy has 3,000 emails with his name and the specific individuals he identified. He asserts, “I requested emails that contain my name which is the subject of my very specific request.” In addition, Mr. Claxton objects to the Academy withholding a conduct investigatory report.

Elizabeth C. Benway SPR21/2663 Page 3 October 26, 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. In camera inspection The Academy is withholding 3,000 emails under FERPA, as it operates through Exemption (a), and a conduct investigatory report under Exemptions (a) and (c). In order to facilitate a determination as to the Academy’s claims, the Academy must provide this office with an explanation of its search criteria and a relative sample of the emails it has identified in its search and compilation for in camera inspection. The Academy must also provide this office with an un-redacted copy of the student conduct investigation report it is withholding in its entirety under FERPA as it operates through Exemption (a) and Exemption (c) for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Academy’s 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

Elizabeth C. Benway SPR21/2663 Page 4 October 26, 2021 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Academy is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Benyamin Claxton