Kyle A. Berner v. Roxbury Community College (SPR 20250860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2025 SPR25/0860 Jordan E. Smock Records Access Officer Roxbury Community College 1234 Columbus Avenue Roxbury Crossing, MA 02120 Dear Ms. Smock: I have received the petition of Kyle A. Berner, Esq. appealing the response of the Roxbury 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 February 14, 2025, Attorney Berner requested: [1] Messages to or from [an identified individual] which mention [two identified individuals] from January 1, 2024 to August 31, 2024 AND [2] Messages to or from [an identified individual] which mention [two identified individuals] from January 1, 2024 to August 31, 2024. The College responded on February 28, 2025. Unsatisfied with the response, Attorney Berner petitioned this office and this appeal, SPR25/0860, was opened as a result. Subsequently, the College sent this office an email on April 2, 2025, stating that the records involved an ongoing administrative proceeding. 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 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

Jordan E. Smock SPR25/0860 Page 2 April 10, 2025 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 College’s February 28th Response and April 2nd Email In its February 28, 2025 response, the College states, “[t]he attached records responsive to your request have been redacted in compliance with G.L. c. 4, Section 7(26)(a) as they are specifically or by necessary implication exempted from disclosure by G.L. c. 149, Section 52C and by G.L. c. 4, Section 7(26) (c)… I have recently become aware that you are representing [the two identified individuals.] Thus, while this response is based on compliance with the Public Records law, I note that with a signed release from your clients, Human Resources may be able to provide you with unredacted versions of responsive records.” In its April 2, 2025 email to this office, the College states, “the records sought by Attorney Berner involve an individual who has brought an action at the Massachusetts Commission Against Discrimination (MCAD) and therefore this matter is in active litigation.” Pending Administrative Proceeding 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. In a telephone conversation between the College and this office on April 8, 2025, the College confirmed that two administrative proceedings relating to the records at issue in Attorney Berner’s request are currently pending before the Massachusetts Commission Against Discrimination (MCAD). See Akeia Collins v. Roxbury Community College (MCAD Docket No. 25-BEM-00516) and See Phylicia Lee v. Roxbury Community College (MCAD Docket No. 25-BEM-00518). In an email to this office on April 9, 2025, the College states, “these MCAD charges relate directly to these named employees and relate to their employment and retrenchment from the College, the records requested, including emails from and to the former head of Human Resources … are directly related.”

Jordan E. Smock SPR25/0860 Page 3 April 10, 2025 In light of the pending administrative matter, I decline to opine on Attorney Berner’s request at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of these administrative actions could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Kyle A. Berner, Esq.