Laura H. Ortiz v. University of Massachusetts Boston (SPR 20241817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2024 SPR24/1817 Matthew Fenlon Office of Communications University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Laura Ortiz 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 June 6, 2024, Ms. Ortiz requested: [1] All responsive records to SPR24/1079 made by [an identified individual]… “…copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA), [identified individuals] of [the University] for the MTA’s webinar on March 21, called ‘Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti- Palestinian Racism’.” [2] If not already provided as a responsive record for [Item 1], a copy of all slides utilized during your [University] professors talk on March 21, 2024 for the [MTA] regarding the Israel/Palestine conflict and “Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti-Palestinian Racism”. On June 6, 2024, the University responded and provided Ms. Ortiz with the responsive records that were previously disclosed to the other requestor she identified. These records included the University’s written response to the prior identified appeal, as well as two “Mentimeter Results” files. After reviewing these materials, on June 10, 2024, Ms. Ortiz clarified her request, stating: … we believe that a few additional records are still missing, especially… the “slides” for the actual webinar that [the University] held for the MTA. The “Mentimeter Results…” appear to be questions asked of the attendees and not any 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 SPR24/1817 Page 2 July 5, 2024 of the webinar itself. Further the webinar attendee list is missing also…. [Please provide:] [1] The missing copy of the responsive letter to our public records request, that was mentioned regarding the [MTA], where you referenced it in [an identified requestor’s public records request response letter dated April 11, 2024]…. [2] The missing copy of the March 21st webinar attendee list mentioned again in the [University]’s April 11 [public records request] response letter … [3] Regarding [Item 2 of the original request]… we referred to [the records] as “slides” because that’s usually what most records access officers would produce regarding a webinar, so in the event we were not clear then please provide a copy of the entire webinar including any “slides” in whatever electronic format it exists in…. The University further responded on June 20, 2024, and provided an additional responsive record. Unsatisfied with the University’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/1817, 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. 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. 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 June 20th response In its June 20, 2024 response, the University provided the initial prior public records request letter responsive to Item 1 of the June 10th email. With respect to Item 2 of the June 10th

Matthew Fenlon SPR24/1817 Page 3 July 5, 2024 email, the University asserted, “…we are awaiting a determination from the Supervisor of Public Records as to whether the attendee list should remain withheld.” With respect to Item 3 of the June 10th email, the University asserted there are no responsive records. Current Appeal In her appeal, Ms. Ortiz stated: The University is in possession of and is refusing to produce … the missing copy of the March 21st webinar attendee list mentioned again in [the University’s] April 11th [response letter to a previous requestor]…. [and] a copy of all slides utilized during your [University] professors talk on March 21, 2024 for the MTA…. [The University] … failed to produce [the attendee list and the webinar slides and] failed to state any applicable exemptions…. Screenshots we saw … show that [the webinar slides] exist. The University’s June 20th response did not contain the specificity required in a denial of access to public records. The University withheld the attendee list without claiming any exemption(s) in the Public Records Law that would support withholding the requested records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. As a result, I find that the University did not satisfy its burden in responding to this records request. Consequently, the University must identify an exemption that applies to withhold the record from disclosure. G. L. c. 66, § 10(b). Possession, Custody or Control; Records in Existence 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, 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). Based on the information provided in Ms. Ortiz’s appeal petition, in conjunction with the University’s response, it is unclear if the University possesses the slide deck responsive to the request. If the University does possess the slide deck, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”).

Matthew Fenlon SPR24/1817 Page 4 July 5, 2024 Conclusion Accordingly, the University is ordered to provide Ms. Ortiz 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. Ms. Ortiz may appeal the University’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz