Lonna Steinberg v. University of Massachusetts - Amherst (SPR 20240019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2024 SPR24/0019 Christine M. Wilda Records Access Officer University of Massachusetts - Amherst 341 Whitmore Administration Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Lonna Steinberg appealing the response of the University of Massachusetts, Amherst (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 16, 2023, Ms. Steinberg requested the following: Any emails, letters, text messages, documents, or communications of any kind, including but not limited to personal email accounts and text messages, which are explicitly covered by the Public Records Law per the Mayor Bill Carpenter ruling (attached below), to, from or signed by any of the following individuals, employees at UMass, from October 7th until the present: 1. . . . Professor of Sociology and Labor Studies, UMass Amherst 2. . . . UMass instructor UMass provided responses on November 28, 2023 and December 20, 2023. Unsatisfied with the responses, Ms. Steinberg petitioned this office and this appeal, SPR24/0019, 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, § l0A(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

Christine M. Wilda SPR24/0019 Page 2 January 18, 2024 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. 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. UMass’s Responses In its November 28, 2023 response, UMass provided a fee estimate which was paid by Ms. Steinberg. Ms. Steinberg sent an email to UMass on December 18, 2023, asking for an update on the request. In an email dated December 20, 2023, UMass stated, “[w]e are working on responsive records.” Current appeal In her appeal, Ms. Steinberg states, “I have no yet received any responsive records. I provided payment on December 6… However, I have not heard anything since…” G. L. c. 66, § 10(a) provides that: A records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record . . . or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that . . . (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d) G. L. c. 66, § 10(a)(iii) (emphasis added). Where it appears Ms. Steinberg has paid the fee to receive the requested records, it is unclear why UMass has not provided the responsive records. 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). 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).

Christine M. Wilda SPR24/0019 Page 3 January 18, 2024 Conclusion Accordingly, UMass is ordered to provide Ms. Steinberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Ms. Steinberg may appeal the substantive nature of the UMass’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lonna Steinberg