William Gazlay v. Massachusetts Department of Higher Education (SPR 20253404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2025 SPR25/3404 Christopher J. Grimaldi, Esq. Assistant General Counsel Massachusetts Department of Higher Education One Ashburton Place, Room 1401 Boston, MA 02108 Dear Attorney Grimaldi: I have received the petition of William Gazlay appealing the response of the Department of Higher Education (Department/DHE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In an email to the Department on October 20, 2025, Mr. Gazlay stated, “[t]ransfer me to whomever handles FOIA requests. I want to know what you . . . said to each other in this deliberate cover up.” Previous Appeal This request was the subject of a previous appeal. See SPR25/3260 Determination of the Supervisor of Records (November 18, 2025). In my November 18th determination, I closed SPR25/3260 in light of the Department providing a supplemental response on November 17, 2025, which included responsive records. Unsatisfied with the response, and claiming the Department possesses additional records, Mr. Gazlay petitioned this office, and this appeal, SPR25/3404, was opened as a result. While this appeal was pending, the Department provided a supplemental response on December 1, 2025. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Gazlay’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Christopher J. Grimaldi, Esq. SPR25/3404 Page 2 December 3, 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 his November 18, 2025 appeal petition, Mr. Gazlay contends that the Department possesses additional responsive records and states, “I want the ENTIRE conversation [the Department] had with [an identified representative of the University of Massachusetts, Boston (UMass)]. . . .” In addition to the above claim, Mr. Gazlay states that he “[wants] the appeal for [his] original complaint to the DHE done.” Upon review of the file, it is my understanding that Mr. Gazlay’s claims relate to a complaint he filed with the Department regarding a Massachusetts institution of higher education. Please note that in requesting this office resolve his complaint to the Department, Mr. Gazlay requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iv); G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Accordingly, I am unable to opine on this matter. The Department’s November 17th and December 1st Responses In its previous response, the Department provided some responsive records and withheld others pursuant to the attorney-client privilege. In its November 17, 2025 response, the Department “re-considered its initial determination regarding the applicability of [the attorney-client privilege] to two initially withheld records[,]” provided the two previously withheld records to Mr. Gazlay, and confirmed that it did not possess additional responsive records.

Christopher J. Grimaldi, Esq. SPR25/3404 Page 3 December 3, 2025 In its December 1, 2025 supplemental response, the Department stated that, upon review, “DHE staff understood that, based on [Mr. Gazlay’s] prior communications to DHE, the individual to which [he] referred in [his] request” is an employee of UMass. The Department explained, “[i]n the course of this matter, DHE staff have not corresponded with [the identified UMass employee]” and further noted that, “therefore, no . . . records were identified” that are responsive to “the ENTIRE conversation [the Department] had with” the identified UMass employee. The Department additionally advised that the only records in its custody that contain the name of the name of the identified UMass employee “were either produced by [Mr. Gazlay] and given to DHE or provided by UMass Boston to [Mr. Gazlay], with copy to DHE, in response to the complaint [Mr. Gazlay] filed.” The Department provided copies of these previously produced records to Mr. Gazlay in its supplemental response and confirmed with this office that “it has no other responsive records within its custody regarding Mr. Gazlay’s November 18, 2025 appeal.” No Duty to Create Records 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 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 Where the Department has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Gazlay 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(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: William Gazlay