David Jeswald v. Bridgewater State University (SPR 20240060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0060 Laura Machado Records Access Officer Bridgewater State University Office of the President 131 Summer Street Bridgewater, MA 02325 Dear Ms. Machado: I have received the petition of David Jeswald appealing the response of the Bridgewater State University (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 5, 2023, Mr. Jeswald requested “… copies of public records that pertain to the Bridgewater State University’s Employee communications involving [an identified individual] whereas either his name or it’s appearance is plausible to assume that the student has been alluded to in any way.” Prior Appeal This request was the subject of a prior appeal. See SPR23/2783 Determination of the Supervisor of Records (December 1, 2023). In my December 1st determination, it was my understanding that the School intended to provide a further response. The University provided responses on December 11, 2023 and December 12, 2023. Unsatisfied with the responses, Mr. Jeswald petitioned this office and this appeal, SPR24/0060, 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). It is the burden of the records custodian to demonstrate the application of an exemption in 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

Laura Machado SPR24/0060 Page 2 January 19, 2024 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. The School’s Responses In its December 11, 2023 response, the School provided further clarification on attorney- client privilege redactions and a privilege log. In an email dated December 12, 2023, the School stated, “[the School] has indeed provided [Mr. Jeswald] with all communications in our possession with the exception of the exempted attorney/client privileged communications which were outlined in the response. As previously explained, [the School] is not in possession of employees’ personal devices.” In an additional email sent to Mr. Jeswald on December 12, 2023, the School stated, “[the School] will reiterate that [the School] is not in possession of, nor do we have access to, employees’ personal cell phones and communications.” Subsequent to the opening of this appeal, the School sent an email to this office on January 16, 2024 and stated, “[the School] has indeed provided all communications in our possession with the exception of the exempted attorney/client privileged communications which were outlined in the attached appeal response dated December 11, 2023… Mr. Jeswald has filed three appeals for the same information which has been explained numerous times. [The School] is not in the possession of employees’ personal devices, personal emails, and personal texts, etc., which is what is repeatedly appealed.” Current appeal In his appeal, Mr. Jeswald states, “I want to appeal this determination because I haven’t received all the public records I have requested.” No Duty to Create Records Please be advised, under the Public Records Law the School is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions,

Laura Machado SPR24/0060 Page 3 January 19, 2024 do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the School does not possess any additional records responsive to the July 5th request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Jeswald is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: David Jeswald