note: this is something i'm doing in my spare time, and without the use of any privileged resources.
Hampshire, ss. SUPERIOR COURT
CIVIL ACTION NO. _________________
Uri Strauss,
Plaintiff
v.
Alan N. Cote, in his official capacity as Supervisor of Records for the Massachusetts Public Records Division, an agency of the Commonwealth,
Defendant
Dr. Esther Terry, in her official capacity as Director of the Office of Equal Opportunity and Diversity at the University of Massachusetts, Amherst,
Defendant
INTRODUCTION
1. Plaintiff brings this case challenging the actions of defendant Terry in failing to provide him with public documents to which he is legally entitled, without the burden of substantial and unreasonable costs, and the actions of defendant Cote in determining that the cost assessed by defendant Terry is reasonable. Plaintiff claims that defendant Terry's and defendant Cote's actions violate the Massachusetts Freedom of Information Act, M.G.L. c. 66, sec. 10. He seeks an order compelling the disclosure of the requested documents, and/or judicial review of defendant Cote's determination that the cost assessed is reasonable.
PARTIES
2. Plaintiff Uri Strauss was at all pertinent times a resident of the Commonwealth of Massachusetts.
3. Defendant Dr. Esther Terry was at all pertinent times the Director of the Office of Equal Opportunity and Diversity at the University of Massachusetts, Amherst.
4. Defendant Alan N. Cote was at all pertinent times the Supervisor of Records for the Commonwealth of Massachusetts.
FACTS
5. Between November 2004 and March 2005, Plaintiff served the University of Massachusetts, Amherst, as a member of the Commission for Campus Diversity, charged with investigating diversity at the University and making pertinent recommendations to the Chancellor. The Commission was asked to make structural recommendations with a view towards long-term impact. No specific charges related to personnel were delivered, and internal discussions of the Commission made it clear that the Commission interpreted its charge as specifically excluding personnel recommendations. Defendant Terry, the University's Associate Chancellor for Equal Opportunity and Diversity, was also an appointed member of the Commission.
6. At the press conference announcing the formation of the committee, UMass Amherst Chancellor John Lombardi promised in public that the Commission's proceedings would be fully open and transparent.
7. On the first full day of the Commission's meetings, Andres Gomes, then a student of the University, entered the room in which the Commission was meeting, upon which Vice Chancellor of Student Affairs Michael Gargano called security to escort him out. As he was being escorted out, he protested to Vice Chancellor Gargano that the Commission's proceedings were supposed to be open and transparent.
8. The same day or the next, a group of students at the university complained to Dr. Orlando Taylor, chair of the Commission on Campus Diversity, about the Commission's proceedings not being open as promised. Dr. Taylor agreed to meet with concerned students after the end of the Commission's meeting on that day. At that meeting, he promised the students that the transcripts of the Commission's proceedings would be posted on the University's website. He repeated this promise to an individual student, Marisha Leiblum, in an e-mail communication.
9. On Feb. 3, 2005, Vice Chancellor Gargano testified before the commission. During his testimony, he was chastised by Commission members for his evasiveness. After his departure, critical remarks were made by Commission members about his impact on diversity and his competence as an administrator.
10. On March 15, 2005, plaintiff sent an e-mail to Commission Chair Orlando Taylor, asking him to make the transcripts public, as promised. This was not done at the time, or since.
11. On Oct. 31, 2005, plaintiff requested, via letter, from defendant Terry a detailed budget of planned and YTD spending of money in a diversity fund administered by her, as well as the full, unedited transcripts from all meetings of the Commission on Campus Diversity, except the public forums, pursuant to the Massachusetts Freedom of Information Act. As Director of the Equal Opportunity and Diversity Office, defendant Terry is the administrator responsible for these records.
12. On Nov. 9, defendant Terry provided the requested budget of the diversity fund. In response to the request for the transcripts of the Diversity Commission, she responded that the full transcript is 4500 pages long, and that payment would have to be provided for photocopying the document and for screening the transcript for "materials or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy". She cited Section 7(26), exemption (c) of the M.G.L. as justification for withholding such records. The total cost estimate provided was $373.12 for search and segregation costs, reflecting 32 hours of search and segregation time at $11.66 per hour; and either $450 or $900 for photocopying, depending on whether plaintiff opted to make the copies himself, or wanted defendant Terry's office to make the copies for him.
13. On a date not recorded in November 2005, plaintiff spoke via telephone with a lawyer in the Secretary of the Commonwealth's office, believed by plaintiff to be Rebecca Murray. Plaintiff described the events discussed above. The lawyer advised him to appeal the assessed cost.
14. On Nov. 14, Plaintiff sent to defendant Terry a letter thanking her for the budget information, and modifying the request for transcripts, narrowing it down to the portions of the daytime part of the Feb. 3, 2005 Commission meeting pertaining to Vice Chancellor Gargano. He requested a revised cost estimate in light of the revision to the information request.
15. In a letter received on Dec. 13, defendant Terry responded with a cost estimate of $500, not offering a breakdown into search and segregation costs and photocopying costs.
16. On the same day, plaintiff appealed defendant Terry's cost assessment to defendant Cote. Plaintiff presented three grounds for the appeal, described in 17 - 19.
17. Plaintiff reasoned that an analysis of the $500 cost estimated by defendant Terry in her communication shows that the search and segregate portion of the cost must be larger than $373.12, and that therefore the search and segregate cost assessed by defendant Terry for a small portion of the document is greater than the search and segregate cost assessed for the full document. Plaintiff charged on this basis that defendant Terry's revised cost assessment was arbitrarily set at an unreasonably high dollar amount in order to deter plaintiff from pursuing his request.
18. Plaintiff asserted that based on his complete knowledge of the contents of the transcript, there are no reasonable grounds for believing any portions of the document to be subject to the privacy exemption.
19. Plaintiff pointed out that Chancellor Lombardi, who convened the Commission on Campus Diversity, made a public commitment to the complete openness of the Commission's proceedings, and that Chair Taylor made the same promise privately.
20. On Jan. 24, 2006, Defendant Cote denied plaintiff's appeal in a letter, disputing plaintiff's reasoning presented above in 17, and finding defendant Terry's cost assessment to be reasonable. Defendant Cote stated that 32 hours is a reasonable amount of search and segregation time and asserted that "while a more specific request may decrease the costs of copying the documents, the overall cost may not be greatly reduced because the same large amount of documents must be culled in order to provide the appropriate records". As the basis for this assertion, defendant Cote cited a telephone conversation between Attorney Rebecca Murray and defendant Terry on Jan. 24, 2006, in which defendant Terry asserted that in order to comply with plaintiff's request, approximately 4500 pages must be examined. Defendant Cote's letter does not mention any attempt to verify the truth of defendant Terry's claim. Defendant Cote's letter also contains no evidence that plaintiff's grounds for appeal described in 18 or 19 were considered.
21. On Feb. 3, plaintiff and defendant Terry were both present at a meeting between university administrators and a search committee on which plaintiff served. After the meeting, plaintiff asked defendant Terry whether she believed that her refusal to provide the information without substantial costs was legally defensible. Defendant Terry told plaintiff not to bother her with legal questions, and added that her desire to withhold information was motivated by "professional courtesy".
CLAIMS FOR RELIEF
Defendant Terry's refusal to produce the requested documents within ten days of the receipt of Plaintiff's formal request without the burden of substantial costs is a violation of M.G.L. c. 66, sec. 10 and 950 C.M.R. 32.00 et seq. WHEREFORE, plaintiff requests that this court determine and order:
1. That the requested documents are public records.
2. That defendant Terry make them available to plaintiff without the burden of substantial costs.
3. That the plaintiff recover his costs.
4. That the court grant any further relief it deems just and equitable.
22. Plaintiff is also seeking judicial review in connection with denial of appeal of a surcharge, pursuant to M.G.L.A. c. 30A, # 14.
23. Plaintiff is aggrieved by a decision of defendant Cote denying plaintiff's appeal of a charge imposed on plaintiff by defendant Terry.
24. Plaintiff's appeal is based on an assertion that defendant Cote’s finding was not supported by substantial evidence, and/or arbitrary and capricious, and/or contrary to law, and/or in excess of his authority, because:
- Defendant Cote made no attempt to verify the statement of defendant Terry that "in order to comply with (plaintiff's) request, approximately 4500 pages must be examined". Defendant Terry's claim is implausible on its face, since the records requested cover only a small subpart of the 4500 page document. This claim by defendant Terry is the sole justification cited by defendant Cote for rejecting plaintiff's appeal.
- Defendant Cote responded only to the first of plaintiff's three grounds for appeal. If plaintiff's second or third grounds had been considered and found reasonable, the question of how many pages would have to be examined would be moot, because the entire record would have to be ruled public.
WHEREFORE, plaintiff requests that the court determine and order:
1. That defendant Cote did not fairly evaluate defendant Terry’s statement that "in order to comply with (plaintiff's) request, approximately 4500 pages must be examined".
2. That defendant Cote reconsider plaintiff’s appeal, fairly evaluating defendant Terry’s claim.
3. That defendant Cote consider plaintiff’s appeal in light of plaintiff’s argument that there is no basis for withholding any part of the document, and that therefore no justification for a “search and segregate” charge exists.
4. That defendant Cote consider plaintiff’s appeal in light of plaintiff’s argument that no parts of the transcript may be withheld because both the Chair of the Diversity Commission and the Chancellor of the Amherst Campus of the University of Massachusetts made guarantees that the Commission’s proceedings would be completely open and transparent.
5. That the plaintiff recover his costs.
6. That the court grant any further relief it deems just and equitable.
___________________________
Verification of factual allegations
Signed under the penalties of perjury
Dated: February 23, 2006
