Colman Herman v. UMASS Dartmouth (SPR 20232334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2334 Ryan C. Merrill Director of Strategic Communications & Media Relations University of Massachusetts Dartmouth 28 Old Westport Road, Room 319 Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Dartmouth (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2023, Mr. Herman requested “copies of any and all communications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store.” Following further correspondence, on September 12, 2023, Mr. Herman requested that the University complete his request using a series of specified search terms. On September 26, 2023, the University asked Mr. Herman to narrow the scope of his request, and on September 27, 2023, the University indicated it would not charge Mr. Herman a fee. Having received no further correspondence from the University, Mr. Herman 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 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. 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

Ryan C. Merrill SPR23/2334 Page 2 October 16, 2023 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 Responses In a September 7, 2023 response, the University provided a hyperlink to numerous responsive records. On September 12, 2023, Mr. Herman modified his request to include a series of specified search terms. In a September 26, 2023 email to Mr. Herman, the University requests that he narrow the scope of his request, and in a September 27, 2023 response, the University states that “the good faith estimate for emails between [specified individuals and organizations] is $0.” In his appeal petition, Mr. Herman contends that the University has not responded further, and requests that this office “order the University of Massachusetts Dartmouth to produce the responsive records at no charge.” G. L. c. 66, § 10(b) The University is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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 Mr. Herman submitted his request on August 20, 2023 and provided a modification on September 12, 2023, and the University has not completed providing the responsive records, nor cited an exemption for withholding records, I find the University has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the University must provide an estimated date as to when it intends to complete the search and provide the responsive 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. Additionally, this office encourages the University and Mr. Herman to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See

Ryan C. Merrill SPR23/2334 Page 3 October 16, 2023 G. L. c. 66, § 10(b)(vii) (an agency shall 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 to produce the records sought more efficiently and affordably). Conclusion Accordingly, the University is ordered to provide Mr. Herman with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman