Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20242920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2024 SPR24/2920 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340F Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Jonathan Gerhardson appealing the response of the University of Massachusetts – Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 9, 2024, Mr. Gerhardson submitted the following request: I believe that the minutes of the meetings of the Demonstration Task Force Committee and its subcommittee, held between June 17 and August 30, are subject to the Massachusetts Open Meeting Law, as are any asynchronous discussion and document review completed via a shared Teams channel. (I actually think the latter may violate Open Meeting Law, but who’s keeping score?) Please send me all minutes and Teams logs at your earliest possible convenience and no later than jan 10 business days from Oct 9, 2024. This is not a Public Records Request. You may not charge for the furnishing of meeting minutes under OML. The University responded on October 24, 2024. Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/2920, 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 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

Christine M. Wilda SPR24/2920 Page 2 November 6, 2024 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 24th Response In its October 24, 2024 response, the University explains the following: The Demonstration Task Force Committee is not subject to the Open Meeting Law because it is not a body “within government.” The reason that it is not “within government” is that it was created by an individual public official (the Chancellor -- rather than at the behest of the Board of Trustees or as a statutory requirement) for advice on a particular policy issue. This is known as the “Connelly exception” arising from an opinion from the Supreme Judicial Court in Connelly v. School Committee of Hanover, 409 Mass 232 (1990). Current Appeal In his appeal petition, Mr. Gerhardson contends the following: The Demonstration Task Force is a public body and should be treated as such under state law. Less than half of its members were appointed by the Chancellor, with other appointments being made by the University Senate and the Student Government Association, among other places. Additionally I contend that the Demonstration Task Force is a quasi judicial agency. During these meetings it made revisions to both the University’s Land Use Policy and the Picketing Code. I expect that the its [sic] Standard Operating Procedures, which the University is currently withholding and is the subject of a Determination SPR24/2823 will contain further evidence in support of this claim. I acknowledge that deciding if the task force is subject to the Open Meeting Law is a likely not a question for [the Supervisor’s] office but the Attorney General. I

Christine M. Wilda SPR24/2920 Page 3 November 6, 2024 am also filing an Open Meeting Law complaint against the task force today. Open Meeting Law The University’s response and Mr. Gerhardson’s appeal raise issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. Consequently, I encourage the parties to contact the AGO for a resolution of the Open Meeting Law issues. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson