Leahy, Thomas v. University of Massachusetts - Lowell (SPR 20140749)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31, 2014 SPR141749 Mr. Thomas S. Hoole Chief Procurement Officer University of Massachusetts - Lowell Wannalancit Business Center, Room 415 Lowell, MA 01854-5103 Dear Mr. Hoole: I have received the petition of Thomas D. Leahy ofthe International Brotherhood of Electrical Workers Local103 (IBEW), appealing the response of University of Massachusetts Lowell (UMass) to IBEW's request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). IBEW made two requests, the first on July 24 and the second on November 10, 2014. Specifically, on July 24, 2014 IBEW requested copies of records related to a request for proposal "for the leasing/purchase of commercial, classroom and administrative space at Harbor Place." The UMass response to this request was dated September 10, 2014, forty-eight days after the date of the request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 1O (b ); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. UMass is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Access Regulations. In the September 10 response UMass denied IBEW's request, citing Exemptions (d), (g) and (h) of the Public Records Law, as well as the common law attorney-client privilege. UMass noted the existence of an active negotiation but provided no additional information to support its exemption claims. In a letter dated November 10, 2014 IBEW attempted to clarify its request to UMass with a seventeen point request for records. This included a request for copies of RFPs, advertisements and notices, responses, evaluations and other records. In a response dated November 21, 2014 UMass provided IBEW with a fee estimate for the provision of records responsive to requests 1-7. UMass denied access to requests numbered 8-17. In this denial UMass failed to cite any exemption at all; IBEW was simply referred back to the September 10 letter. The basis ofiBEW's appeal is the applicability of the stated exemption claims. OneAshburton Place, Room 1719, Boston, Massachusetts 02108. (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Thomas S. Hoole SPR14/749 Page Two December 31, 2014 The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08( 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by UMass did not contain the sp'ecificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. I find UMass has failed to meet its burden of specificity in denying access to public records. Accordingly, UMass is hereby ordered to provide all remaining responsive records to IBEW in a manner consistent with this order, the Public Records Law and its Regulations. If UMass intends to withhold or redact any portion of the responsive records pursuant to a specifically stated exemption, IBEW must be provided with a privilege index. See 950 C.M.R. 32.08(8); see also Suffolk Constr. Co. Inc. v. Div. of Ca i 1 Asset ana ement, 449 Mass. se . 444, 460 (2008). This administrative appeal is now cl cc: Mr. Thomas D. Leahy