Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20242173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2024 SPR24/2173 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts, Amherst 340 Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Jonathan Gerhardson appealing the response of the University of Massachusetts, Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2024, Mr. Gerhardson requested “[a] full copy of every public records request sent to the University of Massachusetts Amherst between March 12, 2024 and May 12, 2024.” Additionally, he specified the following: By full copy I mean I expect these records will contain: [1.] the original request, [2.] all communications between the requestor and UMass, [3.] internal, inter-departmental, and inter-agency communications relating to the request, [4.] all responsive documents provided, and in cases where documents were withheld, a list of the withheld documents, the exemption cited, and an explanation for why this exemption applies, to the extent required under the public records law, [5.] any appeals filed, all correspondences etc as described above regarding the appeal, and the outcome of the appeal including any records released then. On June 24, 2024, Mr. Gerhardson modified his request, maintaining the same five categories listed above, but adding the following to the beginning of his request: By “all public records requests” I mean those made in writing via the University’s public records portal, or by electronic, first class, or certified mail to any RAO of the University of Massachusetts Amherst, or any electronic mail sent to another employee of the University who then forwarded it to the RAO on behalf of the requestor. For each public records request, I seek the following... 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

Christine M. Wilda SPR24/2173 Page 2 August 14, 2024 Previous Appeals This request was the subject of previous appeals. See SPR24/1614 Determination of the Supervisor of Records (June 7, 2024) and SPR24/1723 Determinations of the Supervisor of Records (June 24, 2024 and July 26, 2024). In my July 26th determination, I encouraged Mr. Gerhardson and the University to continue to communicate directly in order to facilitate providing records more efficiently and affordably. Subsequently, the University responded on July 30, 2024, seeking clarification from Mr. Gerhardson concerning the scope of his request. Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/2173, 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. 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. The University’s July 30th Response In its July 30, 2024 response, the University requests that Mr. Gerhardson “please clarify how you have ‘narrowed’ the scope.” The University highlights portions of the original May 12, 2024 request and the modified June 24, 2024 request, and states that “[t]he only difference is in the highlighted language which mean the same, just further detailed. Please clarify.” Current Appeal In his appeal petition, Mr. Gerhardson contends the following: I am appealing this on th[e] basis that UMass has no right to ask about the nature of my request, beyond determining if it if [sic] for commercial use, something we have already established this request is not. Frankly I believe UMass is simply

Christine M. Wilda SPR24/2173 Page 3 August 14, 2024 stalling for time, or hoping I’ll give up. We are nearing 4 months and still no records. Duty to Suggest a Reasonable Modification In its response, the University is seeking clarification regarding the scope of Mr. Gerhardson’s request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Given the expansiveness of his request, Mr. Gerhardson is encouraged to provide the University with the needed clarification regarding the requested records. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). Based on the foregoing, it is unclear what the basis of Mr. Gerhardson’s appeal is. Mr. Gerhardson is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gerhardson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson