Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20241694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records June 20, 2024 SPR24/1694 Ryan C. Merrill Communications & Media Relations University of Massachusetts – Dartmouth Office of Public Affairs 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of Eleonara Bianchi, of the New Bedford Light, appealing the response of the University of Massachusetts – Dartmouth (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2024, Ms. Bianchi requested, “... H05-01: Student test and examinations of course ‘PSC 251 - World Political Issues & Ideas’ during Fall 2012 and Spring 2013.” Prior Appeals The requested records were the subject of prior appeals. See SPR24/0986 Determination of the Supervisor of Records (April 16, 2024) and SPR24/1160 Determination of the Supervisor of Records (May 2, 2024). In my May 2nd determination, I found that although portions of the responsive records may be redacted pursuant to Exemption (a), FERPA, it is unclear how the records may be withheld in their entirety. Specifically, it is unclear how redactions “would not maintain the student’s privacy” as claimed by UMass. UMass responded on June 4, 2024. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/1694, 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 SPR24/1694 Page 2 June 20, 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(d)(iv) (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…”); 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). 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’ June 4th response In its June 4, 2024 response, UMass stated, “[i]t should be noted that our initial response[s] in this matter were made in order to make clear our position that the Request seeks records that no postsecondary institution ‐ public or private ‐ should disclose. Putting aside FERPA considerations, the intellectual property protections afforded by the federal Copyright Law (17 U.S.C. §106) apply to the types of records sought in the Request ‐ to say nothing of the implications presented if students could request copies of prior exams from previous semesters via the public records law. Given that no responsive records exist here, we need not further develop our position, but we ask the SOR that it be noted.” Current appeal In her appeal, Ms. Bianchi states, “... I’d like to mention that the freedom of the media to communicate and receive information is part of the First Amendment. Misrepresenting the existence of public records is a clear violation of the public records law, which could be addressed with a Subpoena Duces Tecum. Second, UMass Dartmouth has failed to provide any explanation as to why the requested records do not exist, especially since, according to the Massachusetts Retention Schedule, they should. Considering these points, I respectfully request that the Supervisor of Records review this appeal and issue a determination.” Based on UMass’ response, I find that UMass must explain whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If records were destroyed, I find that UMass must demonstrate whether it followed proper records retention protocol. UMass must clarify this matter. Conclusion Accordingly, UMass is ordered to provide Ms. Bianchi with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Ryan C. Merrill SPR24/1694 Page 3 June 20, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Eleonara Bianchi