Colman Herman v. University of Massachusetts Building Authority (SPR 20170335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 28, 2017 SPR17/335 David P. Mullen, Esq. Deputy Director and General Counsel University of Massachusetts Building Authority One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Mullen: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Building Authority (UMBA) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested a copy of: 1. All communications between UMBA and Robert Kraft, Jonathan Kraft, the Kraft Group and any and all organizations owned by the Krafts that pertain to siting a soccer stadium at the former Bayside Exposition Center in Dorchester; and 2. All internal communications regarding the matter described in Request Number 1. Communications requested in both Request Number 1 and Number 2 includes emails, letters, memoranda and faxes. In its March 8, 2017 response, UMBA informed Mr. Herman that the common law attorney-client privilege and Exemptions ( d), (g), (i) and (u) apply to exempt information that may be contained in these records and will permit withholding. G. L. c. 4, §§ 7(26)(d), (g), (i) and (u). In a March 3th email sent after receiving your response, Mr. Herman sought to discuss your claim that the attorney-client privilege did not comply with case-law, and that there is no property acquired or being acquired by UMBA. When UMBA did not respond to his email for further explanation of the denial, Mr. Herman appealed. 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

David P. Mullen, Esq. SPRl 7/335 Page 2 March 28, 2017 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). 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, § 1O (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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Exemptions claimed by UMBA UMBA claims that Exemptions (d), (g), (i) and (u) will allow UMBA to withhold the records, to the extent UMBA possesses the requested records. The March gth response merely cites exemptions that may apply. UMBA has failed to identify what records UMBA actually has in its custody that are responsive to each of Mr. Herman's enumerated requests. In order to withhold records or content of records, the records custodian has the burden of stating what particular records it has that are being withheld, not records that the custodian may have in its custody. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). Mr. Herman requested electronic and paper communication records that UMBA has regarding identified individuals and entities related to the particular subject matter listed in Mr. Herman's request. Yet, UMBA claimed Exemption (i) which relates to real property appraisals for either the purchase 9f real property or the sale of real property. UMBA has also cited Exemptions (g) and (u) which relate to financial and proprietary information, without specifically stating whether UMBA has any communications that contain financial and proprietary information that could be withheld or redacted from the record.

David P. Mullen, Esq. SPRl 7/335 Page 3 March 28, 2017 Exemption (d ) UMBA has claimed that the requested communications should be withheld pursuant to Exemption ( d) of the Public Records Law. Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)(d) Exemption (d ) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). UMBA states in its response, "[T]he unwarranted disclosure of deliberations will have an adverse effect on UMBA's ability to attract vendors or parties interested in working with the University, further limiting our ability to obtain best value or options ... [R]elease of the discussions of agency staff to or with external parties will damage UMBA' s ability to achieve the best terms for its property ... " Mr. Herman was not provided with a detailed response that explains what communications, both electronic and paper, that UMBA has in its custody. Further, UMBA has not demonstrated how every communication record is related to legal policy matters found in an ongoing deliberative process. UMBA has not met its burden of proving that all the records may be withheld as part of the deliberative process. Please be advised that statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979); see also G. L. c. 66, § 10(a ). Common law attorney-client privilege UMBA has also claimed that it is asserting its privilege to redact or withhold any records containing legal advice provided to UMBA officials under the common law attorney-client

David P. Mullen, Esq. SPRl 7/335 Page 4 March 28, 2017 privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenberg Educ. Ctr., Inc., v. Comm'r of the Dept. of Mental Retardation (No. 1), 424, Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk Constr. Co., Inc., 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93, (1831). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney-client relationship exists, but that, with respect to the privileged materials: (1) the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization ofElec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419, 421 (1997). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. In addition, under the new provisions in the Public Records Law, the Supervisor of Records shall require that an agency or municipality provide a detailed description of the record(s), including the names of the authors and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed. G. L. c. 66, § 1O A. UMBA did not produce such an index or detailed description in its response. Consequently, UMBA has not met its burden under the holding in Suffolk, nor under the tenets of the Public Records Law; therefore, should provide Mr. Herman with an index or detailed description of any communications it is withholding under the attorney-client privilege.

David P. Mullen, Esq. SPRl 7/335 Page 5 March 28, 2017 Order Accordingly, UMBA is hereby ordered to provide Mr. Herman with the requested records or a more detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, f<J;WA~ Rebecca S. Murray Supervisor of Records cc: Colman Herman