Timothy J. Coco v. University of Massachusetts - Lowell (SPR 20250814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records April 7, 2025 SPR25/0814 David Joyner Records Access Officer University of Massachusetts – Lowell 600 Suffolk Street Lowell, MA 01854 Dear Mr. Joyner: I have received the petition of Tim Coco, of Public Media of New England, Inc., appealing the response of the University of Massachusetts, Lowell (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 26, 2025, Mr. Coco requested the following records: [1] Lease and any amendments or other understandings relating to rent, use and occupancy of second and third floors by UMass Lowell or related UMass Lowell- controlled entity at Harbor Place, 2 Merrimack St., Haverhill, from inception to present. [2] Expenses related to planning, building out, equipping and rental of the UMass Lowell Innovation Hub in Haverhill from 2014 to present. [3] All occupancy and lease-related communications, including electronic, between UMass Lowell and its Haverhill landlord. [4] All communication, including electronic, between UMass Lowell and all elected officials regarding future iHub plans, including terminating its Haverhill presence, sub-letting, disposition of furnishings and equipment. UMass responded on March 7, 2025 and March 13, 2025. Unsatisfied with the responses, Mr. Coco petitioned this office and this appeal, SPR25/0814, 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 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

David Joyner SPR25/0814 Page 2 April 7, 2025 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. UMass’ March 7th and March 13th responses In its March 7, 2025 response, UMass stated as follows: “[a]t this time we’re assessing the request and working to identify relevant records. If you wish to narrow the request, it may help expedite our response. Either way, I’ll be in touch as soon as possible with a response.” In its March 13, 2025 response relating to Item 2, UMass advised, “[p]lease find attached documents responsive to your Feb. 26, 2025, request for records related to UMass Lowell’s former Innovation Hub location in Haverhill. With regard to Item 3, UMass advised, “[a]s to the portion of your request seeking communications related to the lease and the Haverhill iHub, I’ve been advised by our IT UMass that the request is too broad to be actionable. However, we are willing to follow-up on a revised request that specifies parameters for a search including specific email addresses you wish to query, both internal and external to the university, along with dates and keywords. I am happy to discuss this in more detail at a time convenient to you. And I will let you know if as we are able to locate additional materials responsive to your request.” Current appeal In his March 14 2025 communication to UMass, Mr. Coco stated, I ask that you address my request for records under the second bullet. The information requested goes to the heart of the inquiry. I’ll clarify that I seek records that list expenses incurred related to planning/architectural design, building out and equipping the second and third floors. This is essentially architect/designer fees, construction costs, equipment and furnishing costs. Bids from contractors might provide this information. On the third bullet, in the spirit of compromise, I’ll narrow the rest of my request to the initial ... correspondence, memorandum, emails, etc. by and

David Joyner SPR25/0814 Page 3 April 7, 2025 between UMass Lowell and the Merrimack Street landlord, outlining the reason(s) for starting lease termination talks ... In lieu of other missing information, I’ll narrow a portion of my request and ask for records of total expenses incurred to staff (salaried and 1099 workers) the Haverhill operation (second and third floors) over the lease term and any offsetting income from co- working space and other sub-tenants or users. While the law doesn’t require you to create a record, if it would be easier for you, I’ll accept detailed spreadsheets or equivalent. Possession, Custody, or Control 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). Where Mr. Coco has clarified and narrowed his request in his March 14 2025 communication, it remains unclear whether UMass possesses records responsive to Mr. Coco’s request. If UMass does possess 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”). I further encourage Mr. Coco and UMass to continue to communicate further in order to facilitate producing records efficiently and affordably. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, UMass is ordered to provide Mr. Coco 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. Mr. Coco may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1).

David Joyner SPR25/0814 Page 4 April 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Tim Coco