Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20242160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records August 13, 2024 SPR24/2160 Ryan C. Merrill Director of Strategic 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 April 16, 2024, Ms. Bianchi requested, “... a copy of the entire personal [sic] file of [an identified individual] including but not limited to tenure history and promotion record [and] the Faculty Appointment Records for [an identified individual] from September 1, 2012, to September 1, 2013.” Prior Appeals and in camera review The requested records were the subject of prior appeals and an in camera review. See SPR24/1339 Determination of the Supervisor of Records (May 16, 2024) and SPR24/1697 Determinations of the Supervisor of Records (June 20, 2024 and July 22, 2024). In my July 22nd determination, I ordered UMass to review the records, redact only where necessary and provide the responsive records. On July 29, 2024, UMass provided a response. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/2160, 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

Ryan C. Merrill SPR24/2160 Page 2 August 13, 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(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 29th response In its July 29, 2024 response, UMass cited Exemption (c) of the Public Records Law, in support of the redactions. Current appeal In her appeal, Ms. Bianchi asserts, “[t]he records provided by UMass Dartmouth do not include the entire tenure history of [an identified individual]. Notably, after the academic year 2012/2013, [an identified individual] ceased teaching as a lecturer and was listed on the UMass Dartmouth payroll as a researcher in the following years. None of this information is present in the records that were provided. I would like to remind UMass Dartmouth that when records are requested, the institution cannot selectively choose which records to deliver. It is my right to receive the records I have requested in their entirety. I request a prompt and complete fulfillment of my original request, including the missing tenure history and the specified Faculty Appointment Records.” In its July 29, 2024 response, UMass stated the following: This harkens in a way to another request made by this requester when we cited precedent to obviate the need to search for records clearly covered by statutory exemptions. In the University system, we attempt to provide public records disclosures and apply exemptions in a consistent manner in order to place our employees and students on a level and steady playing field immune to the vagaries of inconsistent action with respect to the public records law. Directives that deviate from longstanding practice make this difficult. As a general matter we wonder if human resource departments of government entities in the Commonwealth, as well as related labor union groups and counsel, should be issued notice by the SOR if longstanding practices in statutory interpretation

Ryan C. Merrill SPR24/2160 Page 3 August 13, 2024 regarding personnel files now are being set aside. Based on Ms. Bianchi’s claims, in conjunction with UMass’ response, it is unclear if UMass possesses the requested records consisting of tenure history and the specified Faculty Appointment 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). If the UMass does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). UMass must clarify whether the identified records exist. 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 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