Erin MacLean v. University of Massachusetts - Boston (SPR 20241516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1516 Matthew Fenlon Office of Communications University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Erin MacLean appealing the response of the University of Massachusetts – Boston (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2024, Ms. MacLean queried, “. . . [l]ast week, you indicated that you were not aware of any current employees wishing to apply for it. Can I ask if that is still the case (no internals have applied), and it would now be open for an external to be considered?” The University provided responses on May 3, 2024 and May 9, 2024. Unsatisfied with the University’s responses, Ms. MacLean petitioned this office and this appeal, SPR24/1516, 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. See 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 SPR24/1516 Page 2 June 3, 2024 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 May 3rd and May 9th responses In its May 3, 2024 response, the University stated that the requested information could not be disclosed. In its May 9, 2024 response, the University stated that records were withheld pursuant to Exemption (c) of the Public Records Law. Current Appeal In her appeal statement, Ms. MacLean states, “…I did not request personal information, therefore a privacy exemption was not a valid response. It was a yes or no question. That violates no one’s privacy…. [I] do not think that a good faith effort was made to respond to this request in compliance with the legal requirement and public policy.” No Duty to Answer Questions, Conduct Research Ms. MacLean is 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). However, 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). Where Ms. MacLean submitted to the University a question, I find the University has no duty under the Public Records Law to answer such a question. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. MacLean wishes to submit a request for public records to the University, and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Erin MacLean