Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20242598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records October 1, 2024 SPR24/2598 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), SPR24/1697 Determinations of the Supervisor of Records (June 20, 2024 and July 22, 2024) and SPR24/2160 Determination of the Supervisor of Records (August 13, 2024). In my August 13th determination, I found that it was unclear if UMass possesses the requested records consisting of tenure history and the specified Faculty Appointment Records. On August 23, 2024, UMass provided a response. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/2598, 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 SPR24/2598 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 cited Exemption (c) of the Public Records Law, in support of the redactions to a responsive record. It does not appear that Ms. Bianchi objects the redactions under Exemption (c). 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 August 23, 2024 response, UMass stated the following: The University does not have any tenure history for this individual because it does not, and never did, exist. As a last-minute hire before the start of the semester, this adjunct part-time lecturer was not in a position that was tenure eligible. As for Faculty Appointment Records, the University cannot locate such a record for this individual. After consulting with Human Resources, we believe that this is most likely due to their office’s efforts during this time period (i) to convert paper records to digital and (ii) to migrate to a new centralized system. While investigating this issue and recalling original paper materials from deep storage offsite in repeated attempts to fulfill the original request, the University did find

Ryan C. Merrill SPR24/2598 Page 3 October 1, 2024 an appointment letter for this individual as a Researcher. That record, redacted for personally identifiable information under exemption c, is attached. 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 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 outstanding responsive records, and has no duty to create records responsive to the request, I will now 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