David Jeswald v. Bridgewater State University (SPR 20252748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2025 SPR25/2748 Laura Machado Staff Associate and Public Information Officer Office of the President Bridgewater State University 131 Summer Street Bridgewater, MA 02325 Dear Ms. Machado: I have received the petition of David Jeswald appealing the response of Bridgewater State University (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 4, 2025, Mr. Jeswald requested: [1] [C]opies of public records that pertain to [an identified] Bridgewater State University email account… used b[y] [an identified individual] or any created public records in Bridgewater State University's possession; which the name is used or plausible to assume that [an identified individual] has been referenced/referred in any way[;] [2] [A]ny and all content regarding but not limited to any reports, emails, text messages, internal memos related to or involving [an identified individual] whereas either his name or the appearance of record[s] is plausible to assume that the student has been alluded to in any way. On September 10, 2025, Mr. Jeswald modified his request to include the following: [A]ll metadata associated with the electronic communications, text messages, SMS, email, reports, memos, or any other communication created using either private or public means upon transmission: Creation Date & Time, Author & Editor, File Size and Word Count, Usage Statistics, and details about the software, hardware, and system that generate that created government/public record. The University responded on September 17, 2025. Unsatisfied with the University’s response, Mr. Jeswald petitioned this office and this appeal, SPR25/2748, 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

Laura Machado SPR25/2748 Page 2 September 26, 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. The University’s September 17th Response In its September 17, 2025 response, the University stated: Bridgewater State University is not in the possession of, nor does it have custody of employees’ personal email accounts and text communications made on their personally owned and paid for devices. This current request is substantially similar to requests dated July 5, 2023, July 16, 2024; as well as February 12, 2025. Based on previous responses, multiple filed appeals, as well as the determinations issued by the Supervisor of Records… Bridgewater State University considers this request resolved. Current Appeal In his appeal petition, Mr. Jeswald stated: [T]he RAO ignores that by nature, the requesting of my university email that made those requests must be in the University's possession/custody/control inherently, as the RAO cites requests that were sent from the very account. The University RAO must provide my request or provide me a valid reason for why I may not receive the information that I have requested… In a supplemental email to this office on September 23, 2025, Mr. Jeswald stated:

Laura Machado SPR25/2748 Page 3 September 26, 2025 …[T]he University is now professing that this current appeal is ‘substantially similar to requests’ which they had received from my university email account… but the July 5, 2023 request generated definitely a partial compliance with The Public Record Law, since only public records that were created using university email accounts were fulfilled… I am hoping I can be provided a conclusory understanding, as I'm still understanding that ‘Public records’ would be inherently created whether created on public or personal devices… Issues Previously Addressed It appears that the issues raised in Mr. Jeswald’s appeal were previously addressed in two prior determinations. See SPR24/0060 Determination of the Supervisor of Records (January 19, 2024) and SPR25/1025 Determination of the Supervisor of Records (April 28, 2025). In my prior determinations, which both concerned substantially the same request as the subject appeal, I found that the University had met its burden in responding to the requests and closed the appeals in light of the University confirming that it possesses no additional responsive records. In a telephone conversation between the University and this office on September 24, 2025, the University again confirmed that it does not possess any additional responsive records outside of records that have already been disclosed to Mr. Jeswald in response to his previous requests. 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). Further, 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). Conclusion Given that the University has confirmed that it possesses no additional records responsive to the request, and this office has no authority to compel the University to create records, I will consider this administrative appeal closed. If Mr. Jeswald 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).

Laura Machado SPR25/2748 Page 4 September 26, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Jeswald