Amy Dicken v. Worcester State University (SPR 20241791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1791 Nancy Ramsdell Records Access Officer Worcester State University 486 Chandler Street Worcester, MA 01602 Dear Ms. Ramsdell: I have received the petition of Amy Dicken appealing the response of Worcester 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 March 14, 2024, Ms. Dicken requested “[v]ideo/audio recording of all police interaction with [an identified individual] on Wednesday, 2/28/2024 & Thursday, 2/29/2024 (at WSU police station on 2/29 & in the WSU parking lot on 2/29).” Previous Appeal This request was the subject of a previous appeal. See SPR24/1294 Determination of the Supervisor of Records (May 10, 2024). In my May 10th determination, I found that the University must explain whether it complied with the Public Records Law and the Statewide Agency Records Retention Schedule (Schedule) in destroying the records. Subsequently, the University responded on May 23, 2024. Unsatisfied with the University’s response, and claiming the University possesses responsive records, Ms. Dicken appealed, and this case, SPR24/1791, 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 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

Nancy Ramsdell SPR24/1791 Page 2 June 27, 2024 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. The University’s May 23rd Response In its May 23, 2024 response, the University states that, “no audio or video was recorded related to the interrogation of [an identified individual], on February 28, 2024, by the Worcester State University Police Department. I understand that the police report includes a statement that ‘He was advised the room was audio and video recorded.’ I have determined that this statement is inaccurate. At the time of this incident, Worcester State University did not have a policy regarding video or audio recordings of interrogations, nor is there any state requirement governing these matters.” Current Appeal In her appeal petition, Ms. Dicken contends the following: Merely stating the Police Report is inaccurate to fulfill the order doesn’t verify the record was not created. The police report ... indicates, in writing, that the interrogation was recorded. In addition to that report, as mentioned previously, multiple conversations and statements made by the University staff should call for a reasonable search for the record requested. Instead, the status of the record, retroactively change from ‘the audio and video was not saved and does not exist’ to, ‘no audio or video was recorded’, only after the initial response was appealed and the Supervisor of Records issued the order to provide the records. Records in Existence; Possession, Custody, or Control Please note 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). Conclusion Where the University confirmed that it does not possess records responsive to Ms. Dicken’s request, I will now consider this administrative appeal closed. If Ms. Dicken is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Nancy Ramsdell SPR24/1791 Page 3 June 27, 2024 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Amy Dicken