Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20242597)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records October 1, 2024 SPR24/2597 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/UMD) 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); SPR24/1694 Determination of the Supervisor of Records (June 20, 2024) and SPR24/2142 Determination of the Supervisor of Records (August 12, 2024). In my August 12th determination, I found that it was unclear if UMass permissibly destroyed the records or disseminated the requested exam to the students, and thus the requested records no longer exist. UMass responded on August 23, 2024. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/2597, 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 SPR24/2597 Page 2 October 1, 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’ August 23rd response In its August 23, 2024 response, UMass stated as follows: First, UMD conducted a search for the requested exams records. None exist. The requester contends that such outcome is not consonant with the records retention schedule. We again note that the requestor does not interpret H05-01 correctly: The retention standard set forth by H05-01 (a) does not apply to the exams requested here. H05-01 (a) addresses “final tests taken as requirement for degree programs.” This standard has consistently been applied to qualifying exams for particular programs, most prominently in technical disciplines. The course in question here – and any exams related to the course - does not fit that criteria. The retention standard that does fit the requested exams here is H05-01 (b): “All other records” which are required to be kept for one year. Any exams from Fall 2012 or Spring 2013 have long since been discarded by UMD - action consistent with the requirements and standards of H05-01 (b). Current appeal In her appeal, Ms. Bianchi states, “[o]nce again, UMass Dartmouth has failed to clarify this matter, insisting that the records I requested fall under H05-01(b): “All other records,” which are required to be retained for only one year.” 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

Ryan C. Merrill SPR24/2597 Page 3 October 1, 2024 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 has confirmed that it does not possess the responsive records, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. Ms. Bianchi is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi