Commonwealth Transparency v. University of Massachusetts - Boston (SPR 20221173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2022 SPR22/1173 Matthew Fenlon Assistant Chancellor for University Relations University of Massachusetts – Boston 100 Morrissey Boulevard Boston, Massachusetts 02125 Dear Mr. Fenlon: I have received the petition of Commonwealth Transparency appealing the response of the University of Massachusetts – Boston (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 17, 2022 Commonwealth Transparency requested, “any and all documentation including electronic messages…which include or reference in any way the academic, educational [and]/or professional credentials and/or licensure of [a certain individual]…” The University provided a response on May 18, 2022. Unsatisfied with the University’s response, Commonwealth Transparency petitioned this office and this appeal, SPR22/1173, 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 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. 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

Matthew Fenlon SPR22/1173 Page 2 May 23, 2022 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 Department’s May 18th Response On May 18, 2022, the Department stated, “in order to give you an accurate estimate of the time required to perform this search, please first clarify and provide the exact terms you would like searched.” That same day, Commonwealth Transparency stated: We do not have any information regarding your data governance nor your retention, nor your classification policies. As such, we would not be in a position to provide specific query language or search criteria. We offer the following ideas[:] We assume you are asking for query assistance within your electronic mail system, where we would start with the two versions of the name we provided and any given names utilized by the University in her account(s), and then credentials associated with her position. That same day, the University stated, “you will need to clarify and provide the exact titles of which ‘academic, educational [and]/or professional credentials and/or licensure’ you want searched.” Current Appeal In its current appeal, Commonwealth Transparency stated, “[I] not only provided a reasonable description of the requested records, [I] supplemented the RAO with ideas on how and where to look. The law does not require the specificity required by the RAO in order to perform a search.” Based on Commonwealth Transparency’s clarification and search inquiry suggestions, it remains unclear if the University possesses records responsive to the above 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Conclusion Accordingly, the University is ordered to provide Commonwealth Transparency with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided

Matthew Fenlon SPR22/1173 Page 3 May 23, 2022 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: Commonwealth Transparency