Laura H. Ortiz v. University of Massachusetts - President's Office (SPR 20242788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2788 Francis Flaherty, Esq. Records Access Officer University of Massachusetts President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: I have received the petition of Laura Ortiz appealing the response of the University of Massachusetts President’s Office (Office) 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, Ms. Ortiz requested the following for nine named individuals for the period of 2022-2024: [1.] …signed and dated or electronically completed (including electronic time and date) State Ethics Commission Conflict of Interest Law Education Training Certificates… [2.] 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… [3.] …signed and dated or electronically completed (including electronic time and date) Conflict of Interest Law Disclosure Form… [4.] 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… The Office responded on October 7, 2024. Unsatisfied with the Office’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/2788, was opened as a result. 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

Francis Flaherty, Esq. SPR24/2788 Page 2 October 21, 2024 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. Att’y 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. See 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 Office’s October 7th Response In its October 7, 2024 response, the Office provided responsive records and stated, “please contact the Massachusetts State Ethics Commission, who serves as the records custodian for such records. Notwithstanding the above, a recent change to the Ethics Training platform enables us general access to Ethics Training Certificates granted from 2023 onward. Please find attached such Ethics Training Certificates. (Please note that two of the nine designated individuals in your request… are not University employees. Accordingly, we have no Ethics Training Certificates for these individuals.)” Current Appeal In her appeal, Ms. Ortiz states, “[o]nly partial records for [Item 1] were produced, none were produced for remainder years for [Item 1] and none were produced for [Items 2, 3, and 4]… University of Massachusetts Office of the President ignored its duties and responsibilities to retrieve these records from its own servers and/or staff who custodian them or produce them as its Records Access Officer to us and failed to provide all destruction notice for the public records it failed to retention.” Possession, Custody, or Control The Office 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

Francis Flaherty, Esq. SPR24/2788 Page 3 October 21, 2024 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). Based on Ms. Ortiz’s appeal, it is unclear whether the Office possesses additional records responsive to Ms. Ortiz’s request. The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Ms. Ortiz with a response to his 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