Shea Melvin v. University of Massachusetts - Amherst (SPR 20213314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3314 Christine Wilda Associate Chancellor for Compliance University of Massachusetts Amherst 341 Whitmore Administration Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Shea Melvin appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 4, 2021, Ms. Melvin requested: 1. Police records at the Umass police department regarding [a named individual] 2. Email Correspondence within umass police department or UMPD employees with any other employee or department at umass or within the university system or outside entities. Ms. Melvin indicated “the time range is from January 2018 to February 2020.” Previous Appeals This request was the subject of previous appeals. See SPR21/2550 Supervisor of Records Determination (October 19, 2021); SPR21/2930 Supervisor of Records Determination (November 16, 2021). In my November 16th determination, I ordered the University to identify the records in its possession responsive to the request, and to clarify how the records constitute “education records.” Subsequently, the University responded on December 10, 2021. Unsatisfied with the University’s response, Ms. Melvin appealed, and this case 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 agency or 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 SPR21/3314 Page 2 January 3, 2022 municipality 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. Att’y 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 University’s December 10th Response In its December 10, 2021 response, the University states the following: [The University is] undertaking the work to produce the records requested while also redacting the information required to be redacted for records of this type. A review of the records request here makes clear by inference the general privacy issues involved with such requests and the need for redaction. In order to expedite [the University’s] work in responding to this request . . . Denise Barton, Chief Deputy General Counsel at the University . . . is willing to work with and speak with the requester in an attempt to expedite the response process or, at the very least, determine the requester’s preferred records schedule if we provide on a rolling basis. The requester should feel free to contact Ms. Barton directly to discuss just that. Current Appeal In her appeal petition, Ms. Melvin states the following: 1. The University of Massachusetts states that redactions are necessary but does not provide a legal basis for doing so nor is specific in what would be redacted. . . . No law is cited and over several appeals it is clear that the university’s claimed exemptions to providing the requested records has not withstood scrutiny. It is unclear what legal basis allows the university to provide only partial disclosure. In the event if redaction is allowed the unredacted copy should be reviewed to ensure redactions are not excessive. 2. The university has not been forthcoming in the total number of records or the records to be produced. [Ms. Melvin] would ask that under 950 CMR 32.08 (5) “Indexing of Records” that an index of records is provided. . . . This will also provide a standard which to determine the amount of records to be produced on a rolling basis and if the amount

Christine Wilda SPR21/3314 Page 3 January 3, 2022 being produced is reasonable. Ms. Melvin goes on to state “I see no reason to speak with Deputy Counsel Denise Barton particularly as I am not an attorney. If she wants to contact me that is fine. I would be happy to speak with Christina Wilda.” Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality 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 . . . and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where the University has not provided a timeframe in which it intends to produce further records, I find the University must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the University must provide responsive records on a rolling basis. With regard to Ms. Melvin’s objections to the University’s claims of exemptions, please be advised, that where the University is yet to produce the records, I find this matter cannot be addressed at this time as the contents of these records are unclear. Once records are provided, Ms. Melvin may appeal the substantive nature of the University’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Both the University and Ms. Melvin have expressed willingness to communicate regarding this request. This office encourages both parties to continue communicating directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Conclusion Accordingly, the University is ordered to provide Ms. Melvin with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Christine Wilda SPR21/3314 Page 4 January 3, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Shea Melvin