Mike Offner v. University of Massachusetts - Boston (SPR 20242096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2096 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) and SPR24/1951 Determination of the Supervisor of Records (July 23, 2024). In my July 23rd determination, I found that it was unclear if UMass Boston possesses any additional records responsive to the request. UMass Boston responded on July 23, 2024. Unsatisfied with UMass Boston’s response, Mr. Offner petitioned this office and this appeal, SPR24/2096, 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 SPR24/2096 Page 2 August 6, 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 23rd response In its July 23, 2024 response, UMass Boston stated, “...once again clarifying that UMass Boston has provided Mr. Offner all records in its possession. UMass Boston does not have any additional materials.” Current appeal Mr. Offner states in his appeal, “I appeal the UMass Boston response for its failure to reflect compliance with this aspect of the law and failure to advise what systems are in place to ensure compliance, such that materials created for the express purpose of being used as curriculum in MA public schools are not provided in response to a public records request and remain unavailable to the public...” No Duty to Create Records 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); 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, Where UMass Boston has confirmed in its July 23rd response that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Offner is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c).

Matthew Fenlon SPR24/2096 Page 3 August 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michael Offner