Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20242977)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2024 SPR24/2977 Ian Cyr Deputy Chief of Police University of Massachusetts Amherst Police Department 585 East Pleasant Street Amherst, MA 01003 Dear Deputy Chief Cyr: 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 24, 2024, Mr. Gerhardson requested “the records withheld under exemption (f) as described in SPR24/2238.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2923 Determination of the Supervisor of Records (November 1, 2024). In my November 1st determination, I closed SPR24/2923 in light of the University providing a written response to Mr. Gerhardson on October 31, 2024. Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/2977, was opened as a result. Subsequent to the opening of this appeal, in a letter to this office and Mr. Gerhardson on November 13, 2024, the University provided a further response. 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 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

Ian Cyr SPR24/2977 Page 2 November 14, 2024 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 29th and November 13th Responses In its October 29, 2024 response, the University states that “[t]he record involved in SPR24/2238 was filed with the Eastern Hampshire District Court, which retains jurisdictional authority to determine whether or not such record may be made publicly available under its Complaint Standards.” In its November 13, 2024 response, the University provides the following additional information: The record in question is an arrest report created by the Department that was used to file charges, including assault and battery on a police officer, against an individual in July of this year. At that time, the named defendant requested the report, and the Department withheld the report citing Exemption (f) and Standard 5:02 of the Complaint Standards of the Trial Courts. . . . Subsequent to [the SPR24/2238] determination, the charges against the defendant were dropped by the Department. However, the victim of the assault and battery, who is a Massachusetts State Police officer has since separately filed criminal charges against the individual using this report as the basis for their application for complaint with the Eastern Hampshire District. At the time the Department responded to Mr. Gerhardson on October 29th it was aware of pending charges against the individual, but it was unable to confirm the status of those charges or any related court proceedings. Since that response, the Department has confirmed with the State Police that this case is scheduled for arraignment on December 20, 2024. The docket number assigned to this court case is 2498AC001698 [sic]. Current Appeal In his appeal petition, Mr. Gerhardson contends that “UMass PD has not cited a specific exemption for withholding the record. [He is] also skeptical of [the University]’s claim that filing a report with the court automatically prevents its release via a public records request.” Additionally, subsequent to the opening of this appeal, in correspondence to this office on November 13, 2024, Mr. Gerhardson further contends “that at the time [he] made [his] request,

Ian Cyr SPR24/2977 Page 3 November 14, 2024 there was no legal basis for UMass police’s withholding. This is probably why in its Oct 31 email with an attachment dated Oct 29, no specific exemption is cited.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that criminal litigation, relating to the record that is the subject of Mr. Gerhardson’s request, is active and ongoing in the Massachusetts District Court. See Commonwealth v. Maysoun Fiona Batley, (Eastern Hampshire District Court Docket No. 2498-CR-001638 (Nov. 4, 2024)). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson Christine M. Wilda