David Jeswald v. Bridgewater State University (SPR 20242038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2038 Laura Machado Records Access Officer Bridgewater State University Office of the President 131 Summer Street Bridgewater, MA 02325 Dear Ms. Machado: I have received the petition of David Jeswald appealing the response of the Bridgewater 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 April 4, 2024, Mr. Jeswald requested, “copies of public records that pertain to the Bridgewater State University’s Employees’ . . . communications involving [a named individual] whereas either his name or it’s [sic] appearance is plausible to assume that the student has been alluded to in any way.” The University provided a response on May 3, 2024. Unsatisfied with the University’s response, Mr. Jeswald petitioned this office and this appeal, SPR24/2038, 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. See 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. 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

Laura Machado SPR24/2038 Page 2 July 29, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 May 3rd Response In its May 3, 2024 response, the University stated that it “is working on searching for responsive records and respectfully requests an additional ten days to respond…” Current Appeal In his appeal, Mr. Jeswald states, “I have been given no indication for the delay, nor any indication of any sort of time frame… I am not receiving any response.” Timeline for providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records… and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where it appears Mr. Jeswald submitted his request on April 4, 2024, it is unclear why the University has not provided the responsive records. 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). 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, I find the University must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the University must provide responsive records on a rolling basis.

Laura Machado SPR24/2038 Page 3 July 29, 2024 Conclusion Accordingly, the University is ordered to provide Mr. Jeswald 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. Mr. Jeswald may appeal the substantive nature of the University’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Jeswald