Colman Herman v. University of Massachusetts - Dartmouth (SPR 20232797)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2797 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. Previous Appeals This request was the subject of previous appeals. See SPR23/2334 Determination of the Supervisor of Records (October 16, 2023) and SPR23/2631 Determination of the Supervisor of Records (November 14, 2023). In my November 14th determination, I closed SPR23/2631 in light of the University providing Mr. Herman with a further response on November 10, 2023. Unsatisfied with the University’s response, Mr. Herman further 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). 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 SPR23/2797 Page 2 December 4, 2023 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. Current Appeal In his appeal petition, Mr. Herman contends that records “had been withheld.” He explains that he asked the University “[w]ere UMass Dartmouth attorneys involved in any of the Star Store matters?” and further contends that “it would be hard to imagine that they were not.” Mr. Herman further argues that “UMass Dartmouth lawyers were involved in the Star Store matter, but no related communications were produced nor was a privilege log provided.” The University’s November 8th and November 10th Responses In a November 8, 2023 response, the University provides a link with numerous responsive records, and in a November 10, 2023 email to Mr. Herman, the University states that “nothing was withheld.” In his appeal petition, Mr. Herman contends that “UMass Dartmouth lawyers were involved in the Star Store matter, but no related communications were produced nor was a privilege log provided.” Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). Based on the records provided in the University’s response, and information provided in Mr. Herman’s appeal petition, it is unclear whether the University possesses additional records responsive to Mr. Herman’s request. If the University does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Ryan C. Merrill SPR23/2797 Page 3 December 4, 2023 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