Joshua Levin v. University of Massachusetts - Boston (SPR 20252439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 2, 2025 SPR25/2439 DeWayne Lehman Director of Communications University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Lehman: I have received the petition of Joshua Levin, of The Mass Media, appealing the response of the University of Massachusetts, Boston (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 31, 2025, Mr. Levin requested the following records: [1] UMass Boston Police Department dispatch logs from the week of March 23-29, 2025[;] [2] UMass Boston Police Department timesheets from the week of March 23-29, 2025[;] [3] Any invoices from (or receipts for payment to) the UMass Boston Police Department to any entity, including inter-departmental invoices, for services rendered during the week of March 23-29, 2025[.] On August 14, 2025, UMass provided a response. Unsatisfied with the response, Mr. Levin petitioned this office and this appeal, SPR25/2439, 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 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

DeWayne Lehman SPR25/2439 Page 2 September 2, 2025 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’ August 14th response In its August 14, 2025 response, UMass provided the dispatch logs for Item number 1. For Item number 3, UMass stated “there are no responsive records.” For Item number 2, UMass cited Exemption (n) of the Public Records Law to withhold the records in their entirety. Current appeal In his appeal, Mr. Levin’s concern is with the withholding of timesheets as requested in Item number 2. Mr. Levin states, “[t]he University asserts that police department timesheets are exempt from disclosure under G. L. c. 4, § 7 (26)(n). The Supreme Judicial Court identified that “protecting the public from terrorist attacks in a post-September 11, 2001, world was the animating principle underlying [Exemption (n)’s] adoption.” PETA v. Dept. of Agricultural Resources, 477 Mass. 280, 288-289 (2017). With that context in mind, it is bewildering that the University would attempt to assert this exemption in response to a student newspaper’s journalistic investigation into the use of public resources.” Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n).

DeWayne Lehman SPR25/2439 Page 3 September 2, 2025 Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. UMass is advised that under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In this case, UMass’ response did not contain the specificity required in a denial of access to public records. UMass merely cites Exemption (n) without any explanation of the applicability of the exemption to the withholding of the responsive records. UMass must clarify this matter. Conclusion Accordingly, UMass is ordered to provide Mr. Levin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Levin may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1).

DeWayne Lehman SPR25/2439 Page 4 September 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joshua Levin