Laura H. Ortiz v. University of Massachusetts Boston (SPR 20241952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1952 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 SPR24/1952 Page 2 July 23, 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…. Previous appeal This request was the subject of a previous appeal. See SPR24/1817 Determination of the Supervisor of Records (July 5, 2024). In my July 5th determination, the University was ordered to provide a supplemental response. The University provided a response on July 5, 2024. Unsatisfied with the University’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/1952, 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.

Matthew Fenlon SPR24/1952 Page 3 July 23, 2024 The University’s July 5th response In its July 5, 2024 response, the University asserted, “I can confirm the University is not in possession of the slide deck.” Further, the University provided a redacted copy of the requested attendee list, asserting, “[s]ince Ms. Ortiz’s request, the Supervisor of Public Records allowed that a redacted attendee list could be shared with a different requestor. …Ms. Ortiz referenced the redacted attendee list in a separate email so I am attaching that here as well.” Current Appeal In her appeal, Ms. Ortiz stated: [T]he attached … attendee list was redacted and inadequate … the [University] merely attached the redacted record and an insufficient explanation for why at all it was redacted when this was public school staff and public school staff emails that are already public knowledge. Further, [the University] failed to attach the … “webinar” itself while having possession of and having produced the… attendee list (as [the University] held the webinar themselves)…. The University’s July 5th response, with respect to the attendee list, did not contain the specificity required in a denial of access to public records. The University redacted the attendee list without claiming any exemption(s) in the Public Records Law that would support the redacted 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 redact the record. G. L. c. 66, § 10(b). In its July 5, 2024 response, the University confirmed it does not possess the requested slide deck. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, regarding the redacted attendee list, the University is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the

Matthew Fenlon SPR24/1952 Page 4 July 23, 2024 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