Mike Offner v. University of Massachusetts - Boston (SPR 20241951)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1951 Matthew Fenlon Records Access Officer University of Massachusetts, Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Michael Offner appealing the response of the University of Massachusetts, Boston (UMass Boston) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2024, Mr. Offner requested, “... copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA), [identified individuals] of UMass Boston, for the MTA’s webinar on March 21, called ‘Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti-Palestinian Racism’.” Prior Appeals The requested records were the subject of prior appeals. See SPR24/1079 Determination of the Supervisor of Records (April 26, 2024) and SPR24/1766 Determination of the Supervisor of Records (June 27, 2024). In my June 27th determination, I found that it was unclear how the labor law statute, G. L. c. 150[E], specifically or by necessary implication prohibited the disclosure of the requested records. Further, I found that it was unclear how the attendee list, in its entirety, could be withheld under Exemption (c). UMass Boston responded on July 5, 2024. Unsatisfied with UMass Boston’s response, Mr. Offner petitioned this office and this appeal, SPR24/1951, 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 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 SPR24/1951 Page 2 July 23, 2024 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. UMass Boston’s July 5th response In its July 5, 2024 response, UMass Boston stated, “...UMass Boston does not possess ‘copies or any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association’.” In a prior response dated April 11, 2024, UMass Boston provided copies of the presentation materials See SPR24/1766. Current appeal Mr. Offner states in his appeal, “... these materials were transmitted to dozens of public employees as well as created by public employees, making all of the webinar materials public records per the Public Records Law.” Mr. Offner also states, “I am appealing the legality of respondents and/or the MTA failing to transfer public records in their possession to the UMass Boston records access officer as required by the Secretary of State.” Based on Mr. Offner’s claims, in conjunction with UMass Boston’s response, it is unclear if UMass Boston possesses any additional records responsive to the request. Although it appears UMass Boston provided presentation materials to Mr. Offner in a prior response (See SPR24/1766), it is unclear why UMass Boston stated in its July 5th response that it “does not possess ‘copies or any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association’.” 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). Consequently, UMass Boston must clarify if additional records exist. Conclusion Accordingly, UMass Boston is ordered to provide Mr. Offner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Matthew Fenlon SPR24/1951 Page 3 July 23, 2024 Regulations within ten 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. Mr. Offner may appeal the substantive nature of UMass Boston’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Offner