Laura H. Ortiz v. University of Massachusetts - Boston (SPR 20242785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2785 Matthew R. Fenlon 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 September 21, 2024, Mr. Ortiz requested the following: 1 a) All state employees or elected or appointed officials and/or considered a “state employee” or “key employee” or “private party” signed and dated or electronically completed (including electronic time and date) State Ethics Commission Conflict of Interest Law Education Training Certificates under G.L. c. 268A, § 28 for the following University of Massachusetts Boston or other Named individuals: [including a list of nine individuals] Timeline: 2022, 2023, 2024 . . . 1 b) All proof of delivery/receipt to the appointing authority, executive director or other appropriate administrator, or their designees, of all of the state employees or elected or appointed officials and/or considered a “state employee” or “key employee” or “private party” signed and dated or electronically completed (including electronic time and date) State Ethics Commission Conflict of Interest Law Education Training Certificates under G.L. c. 268A, § 28 for the following University of Massachusetts Boston or other Named individuals: [including a list of nine individuals] 2 a) All state employees or elected or appointed officials and/or considered a “state employee” or “key employee” or “private party” signed and dated or electronically completed (including electronic time and date) Conflict of Interest Law Disclosure Form filed under G.L. c. 268A et al or 930 CMR 5.00 et al for the following University of Massachusetts Boston or other 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 R. Fenlon SPR24/2785 Page 2 October 21, 2024 Named individuals: [including a list of nine individuals] Timeline: 2022, 2023, 2024 . . . 2 b) All proof of delivery/receipt to the appointing authority, executive director or other appropriate administrator, or their designees, of all of the state employees or elected or appointed officials and/or considered a “state employee” or “key employee” or “private party” signed and dated or electronically completed (including electronic time and date) Conflict of Interest Law Disclosure Form filed under G.L. c. 268A et al or 930 CMR 5.00 et al for the following University of Massachusetts Boston or other Named individuals: [including a list of nine individuals] Timeline: 2022, 2023, 2024[.] The University responded on October 7, 2024, providing information concerning each individual listed in the request. Unsatisfied with the University’s response, Ms. Ortiz petitioned this office, and this appeal, SPR24/2785, 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 October 7th Response In its October 7, 2024 response, the University provides a brief summary of information concerning each individual listed in the request, and states that “[f]or copies of certificates, please contact the Ethics Commission which is the custodian of those records.”

Matthew R. Fenlon SPR24/2785 Page 3 October 21, 2024 Current Appeal In her appeal petition, Ms. Ortiz contends that “University of Massachusetts Boston gave an inadequate response and refused to produce records for parts 1a, 1b or 2a or 2b that exist and are in its custody, possession or control or ability to retrieve, regarding my ‘9/21/24 UMass Boston PRR Records - COI and Disclosures.’” Possession, Custody, or Control The University is advised that 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based on the University’s October 7th response, it is unclear whether the University possesses additional records responsive to Ms. Ortiz’s request. If the University 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) (a 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”). Conclusion Accordingly, the University is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz