Laura H. Ortiz v. University of Massachusetts - President's Office (SPR 20242501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2024 SPR24/2501 Matthew Fenlon Office of Communications University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Laura Ortiz appealing the response of the University of Massachusetts, Boston (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 6, 2024, Ms. Ortiz requested: [1] All responsive records to SPR24/1079 made by [an identified individual]… “…copies of any and all presentations and/or other materials prepared and/or used by the Massachusetts Teachers Association (MTA), [identified individuals] of [the University] for the MTA’s webinar on March 21, called ‘Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti- Palestinian Racism’.” [2] If not already provided as a responsive record for [Item 1], a copy of all slides utilized during your [University] professors talk on March 21, 2024 for the [MTA] regarding the Israel/Palestine conflict and “Anti-Racism Task Force Webinar: Context and Connection: Palestinian Struggle Against Anti-Palestinian Racism.” On June 6, 2024, the University responded and provided Ms. Ortiz with the responsive records that were previously disclosed to the other requestor she identified. These records included the University’s written response to the prior identified appeal, as well as two “Mentimeter Results” files. After reviewing these materials, on June 10, 2024, Ms. Ortiz clarified her request, stating: … we believe that a few additional records are still missing, especially… the “slides” for the actual webinar that [the University] held for the MTA. The “Mentimeter Results…” appear to be questions asked of the attendees and not any 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 SPR24/2501 Page 2 September 18, 2024 of the webinar itself. Further the webinar attendee list is missing also…. [Please provide:] [1] The missing copy of the responsive letter to our public records request, that was mentioned regarding the [MTA], where you referenced it in [an identified requestor’s public records request response letter dated April 11, 2024]…. [2] The missing copy of the March 21st webinar attendee list mentioned again in the [University]’s April 11 [public records request] response letter … [3] Regarding [Item 2 of the original request] … we referred to [the records] as “slides” because that’s usually what most records access officers would produce regarding a webinar, so in the event we were not clear then please provide a copy of the entire webinar including any “slides” in whatever electronic format it exists in…. Previous appeals This request was the subject of previous appeals. See SPR24/1817 Determination of the Supervisor of Records (July 5, 2024) and SPR24/1952 Determination of the Supervisor of Records (July 23, 2024) and SPR24/2106 Determination of the Supervisor of Records (August 7, 2024). In my August 7th determination, it was my understanding that the University was to provide a further response to Ms. Ortiz. The University provided a response on September 4, 2024. Unsatisfied with the University’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/2501, 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

Matthew Fenlon SPR24/2501 Page 3 September 18, 2024 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 September 4th response In its September 4, 2024 response, the University cited Exemption (a) of the Public Records Law and advised that there is a pending Department of Labor Relations (DLR) hearing. The University further stated, In response to these two records requests, the University provided three documents from the Webinar (the “Webinar Documents”). The University did not provide an unredacted list of Webinar attendees, redacting names while seeking guidance in writing from the SOR as to whether or not disclosure of an unredacted attendee list would violate G. L. c. 4, § 7(26)(a) given the requites of G. L. c. 150E. The MTA had sent correspondence to the University on April 5, 2024, contending among other things that the provision of the attendee list would violate G.L. c. 150E. The Massachusetts Public Records Law, specifically G. L. c. 4, § 7(26)(a), mandates that a public entity shall not provide records that are “specifically or by necessary implication exempted from disclosure by statute.” Via email from the MTA to the University on August 29, 2024 the University was provided notice that the MTA filed a prohibited practice charge filed against the University with the Department of Labor Relations (“DLR”) for, among other things, disclosing the Webinar Documents and the redacted attendee list. Pursuant to 950 CMR 32.08(2)(b)(1) - and longstanding SOR practice - the SOR should take no action with respect to this Request or any related current appeal given the pending DLR hearing. Active Administrative Proceeding 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, Massachusetts Teachers Association v. University of Massachusetts, filed at the Department of Labor Relations, Case Docket No. SUP-24-10801, I decline to opine on this matter at this time. I further decline to opine on the applicability of Exemption (a) of the Public Records Law to the requested records. See 950 C.M.R. 32.08(2)(b).

Matthew Fenlon SPR24/2501 Page 4 September 18, 2024 It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz