Sara Hincapie v. Bristol Community College (SPR 20250420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2025 SPR25/0420 Joyce Brennan Vice President of Marketing & Communication Bristol Community College 777 Elsbree Street Fall River, MA 02720 Dear Ms. Brennan: I have received the petition of Sara Hincapie appealing the response of the Bristol Community College (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2025, Ms. Hincapie requested: [1.] . . . the Job Description and Job Requirements for the Senior Mental Health Counselor position, and for the Adjunct Psychology Professor as would have applied to someone holding the position in 2019-2023. It is my understanding that this information was already provided to the Ethics Commission, which should help reduce the time and costs for this item. [2.] . . . a formal statement from the college clarifying if they have granted to any of their Student Wellness Staff any special permissions to treat patients/students without licensing and supervision. I have heard that the college gave such special permission to one of your staff, and would like a formal verification or denial of this…. Previous Appeal This request was the subject of a previous appeal. See SPR25/0286 Determination of the Supervisor of Records (February 7, 2025). In my February 7th determination, I found it unclear whether the College possessed additional responsive records. The College responded on February 11, 2025. Unsatisfied with the College’s response, Ms. Hincapie appealed, and this case, SPR25/0420, 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

Joyce Brennan SPR25/0420 Page 2 February 24, 2025 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. Current Appeal In her appeal, Ms. Hincapie states, “they previously provided records related to student interns. It is highly irregular that an institution would maintain employment records for interns but not for senior staff who were responsible for mental health services…. The College asserts that no records exist regarding their process for verifying the licensure of mental health staff between 2019-2023. However, it is standard practice, and often a legal requirement, for institutions providing psychological services to ensure staff possess the necessary credentials.” The College’s February 11th Response In its February 11, 2025 response, the College states that all responsive records have already been provided and no additional records exist. In a telephone call between a staff attorney of the Public Records Division and the College on February 24, 2025, the College confirmed that it provided all records responsive to the request. No Duty to Create Records Please be advised, 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). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for

Joyce Brennan SPR25/0420 Page 3 February 24, 2025 records extends only 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 Where the College confirmed that it does not possess additional records responsive to Ms. Hincapie’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Hincapie is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Sara Hincapie