Mira Belenkiy v. University of Massachusetts - Boston (SPR 20241905)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1905 Matthew Fenlon Assistant Chancellor for University Relations University of Massachusetts Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Mira Belenkiy, on behalf of Jany Finkielsztein, 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 April 11, 2024, Ms. Finkielsztein requested the following records: [A]ll emails and email attachments sent or received between October 7/2023 through April 11/2024 that are to/from any [three identified individuals]. . . [t]hat mention any of the words or phrases: Israel, Palestine, Palestinians, Zionists, Zionism, Jews, Settler Colonial State, Boycott Divestment Sanction(BDS) [sic], anti-racism webinar, anti-racist task force, MTA anti-racism webinar, MTA. On May 13, 2024, Ms. Finkielsztein modified the request as follows: All communications between massteacher.org or [an identified individual] and . . . [three identified individuals] . . . [b]etween the date Oct 7, 2023 and April 15, 2024. In addition, I would like any presentation slide decks held by these three named individuals that were shown to the MTA during their training. The University responded on June 18, 2024. Unsatisfied with the University’s response, Ms. Belenkiy petitioned this office and this appeal, SPR24/1905, 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 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 SPR24/1905 Page 2 July 17, 2024 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. 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 University’s June 18th Response In its June 18, 2024 response, the University provided three PDFs and states, “IT. . . set up the drop box. I am also attaching here again.” Current appeal In her appeal, Ms. Belenkiy states: In response [to the request], the RAO sent me 3 PST files - which is a proprietary Microsoft Outlook format that can only be opened with a paid Microsoft Outlook subscription. Upon my request, the RAO converted the files to PDF. . . . However, the PDFs that the RAO sent me were corrupted. Instead of the requested emails, they had only a link to download Adobe Acrobat. The RAO sent me the files via dropbox and later the [sic] via email (attached below). Please direct the UMB RAO to properly export the files from Microsoft Outlook to PDF and send them to me again. In a subsequent email to this office dated June 18, 2024, Ms. Belenkiy confirms that “the reason for [her] appeal” is that “[t]he RAO sent. . . three corrupted PDF files” in response to the request. Following the opening of this appeal, in an email to this office and Ms. Belenkiy dated July 3, 2024, a representative of the University advises that it made “multiple attempts to accommodate the requester[.]” The University states, “[b]efore UMass Boston shared the files in 3 separate electronic formats, UMass Boston IT confirmed all 3 electronic methods of sharing the files were accessible and functioning. UMass Boston subsequently offered the requester a 4th option, to pick up a thumb drive with the files. The thumb drive has been available for the requester for more than two weeks.”

Matthew Fenlon SPR24/1905 Page 3 July 17, 2024 In a response email to this office and the University dated July 3, 2024, Ms. Belenkiy reiterates that “the files UMB shared . . . are corrupted so we cannot view them.” She further indicates that she will “accept a PDF file delivered as an email attachment, DropBox or Google Drive” and that “[p]utting the same bad data on a thumb drive would not solve the problem.” In a follow-up email dated July 3, 2024, a University representative explains, “[t]wo of the inboxes have been shared via PDF. As shared, the third file is too large to send over email which is why it was shared in two different electronic methods that both were confirmed accessible by UMB IT - one drive and drop box. As offered, it is also available via a thumb drive for a third method.” Unclear Appeal In accordance with the Public Records Law, a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Ms. Belenkiy is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, where the University has indicated that “[t]wo of the inboxes have been shared via PDF. . . [and] the third file. . . was shared in two different electronic methods. . . one drive and drop box[,]” and the University indicated it has made available the responsive records in its possession on a thumb drive, I find that the basis of Ms. Belenkiy’s appeal is unclear. This office encourages Ms. Belenkiy to communicate directly with the University in order to arrange receipt of the records responsive to her request. Ms. Belenkiy may then describe her specific objections to the University’s response. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Matthew Fenlon Jany Finkielsztein