Daniel D. Jaffe v. University of Massachusetts Medical School - Office of Management (SPR 20221163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2022 SPR22/1163 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 Daniel D. Jaffe of the Committee for Public Counsel Services - Strategic Litigation Unit appealing the response of UMass Medical School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 23, 2022, Mr. Jaffe requested the following records: 1. From January 1, 2017, to the present, any contracts, agreements, memorandums, and correspondence regarding drug sample submissions between UMM DAL and the Massachusetts Department of Correction (DOC). 2. From January 1, 2022, to the present, for all drug samples submitted by DOC which were found to contain synthetic cannabinoids after testing: full lab packets, drug certificates, and a sample tracking spreadsheet with all available fields/columns. 3. From January 1, 2022, to the present, for all drug samples submitted by DOC which were found to contain no detectable drugs after testing: full lab packets, drug certificates, and a sample tracking spreadsheet with all available fields/columns. Previous appeal This request was the subject of a previous appeal. See SPR22/1033 Determination of the Supervisor of Records (May 17, 2022). Unsatisfied with the response, Mr. Jaffe petitioned this office and this appeal, SPR22/1163, was opened as 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 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 SPR22/1163 Page 2 June 1, 2022 or characteristics, made or received by any officer or employee of any agency or 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. 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. The School’s May 17th response In its May 17th response, the School stated, “… as we were assembling information to support the University’s previously provided good faith estimate, we became aware that (i) the records being sought here are the subject of a dispute in active litigation.” In a June 1, 2022 email, a School representative advised, “… the public records in question are the subjects of disputes in active litigation, namely Green, et. al. vs. Massachusetts Department of Correction, Docket No. 2184-cv-2283 (Suffolk County Superior Court).” Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In a conversation between a School representative and a senior attorney of the Public Records Division, the School confirmed that the matter is currently pending and that the proceedings are related to the requested records. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel D. Jaffe