Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20242142)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records August 12, 2024 SPR24/2142 Ryan C. Merrill Communications & Media Relations University of Massachusetts – Dartmouth Office of Public Affairs 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of Eleonora Bianchi, of the New Bedford Light, appealing the response of the University of Massachusetts – Dartmouth (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2024, Ms. Bianchi requested, “... H05-01: Student test and examinations of course ‘PSC 251 - World Political Issues & Ideas’ during Fall 2012 and Spring 2013.” Prior Appeals The requested records were the subject of prior appeals. See SPR24/0986 Determination of the Supervisor of Records (April 16, 2024); SPR24/1160 Determination of the Supervisor of Records (May 2, 2024) and SPR24/1694 Determination of the Supervisor of Records (June 20, 2024). In my June 20th determination, I found that UMass must explain whether the requested records existed and were destroyed, or whether the records did not initially exist. UMass responded on July 10, 2024. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/2142, 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). 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

Ryan C. Merrill SPR24/2142 Page 2 August 12, 2024 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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’ July 10th response In its July 10, 2024 response, UMass stated as follows: The course was taught over a decade ago. Student blue books are retained by students once graded and disseminated to them. An exam over a decade old typically is not retained. In the last decade, roughly 65,000 courses were hosted by the university, and each would have exams for varying numbers of students, a number far too large to make storage practical. Finally, the requester cites inapplicable authority in an attempt to support the appeal. Yes, the Massachusetts Statewide Records Retention Schedule provides in H05-01: Student Tests and Examinations that certain final exams if taken as a requirement for degree programs must be permanently retained. See H05-01(a) (emphasis added). That is not what the Requested exam is. Rather, the Requested exam falls under H05-01(b) – “other records” that must be retained for one year. It is fair to infer that the Massachusetts Statewide Records Retention Schedule drafters considered the practicality and bandwidth of storage when designating permanent retention obligations upon such a small and significant set of exam records – final exams required for degree requirements. Current appeal In her appeal, Ms. Bianchi states, “[a]ccording to the Massachusetts Retention Schedule, H05-01 pertains explicitly to ‘Documents tests taken by students as part of course requirements’. The records I requested—specifically, tests and examinations for PSC 251—clearly fall under this category. My request was for ‘Student test and examinations of course PSC 251 - World Political Issues & Ideas during Fall 2012 and Spring 2013’. As such, these records should be classified under H05-01, not under H05-01(b).”

Ryan C. Merrill SPR24/2142 Page 3 August 12, 2024 Unclear if records exist Although UMass states that the “requested exam falls under H05-01(b) – ‘other records’ that must be retained for one year,” it remains unclear if UMass permissibly destroyed the records or disseminated the requested exam to the students, and thus the requested records no longer exist. 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). Consequently, UMass must clarify this matter. Conclusion Accordingly, UMass is ordered to provide Ms. Bianchi 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. Ms. Bianchi may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi