Adam Vaccaro v. University of Massachusetts Building Authority (SPR 20170388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2017 SPR17/388 David P. Mullen, Esq. General Counsel University of Massachusetts Building Authority One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Mullen: I have received the petition of Adam Vaccaro of The Boston Globe 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. Vaccaro requested "[a]ny email communication to or from a recipient or sender whose email address ends with: @btu.org; and that use any of the following key words: Kraft, Krafts, Soccer, Stadium, Arena, or Bayside." In its March 20, 2017 response, UMBA withheld responsive records under Exemptions (d), (g), and (u) of the Public Records Law. G. L. c. 4, § 7(26)(d), (g), (u). 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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the 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

David P. Mullen, Esq. SPR17/388 Page 2 April 5, 2017 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. March 2(1'1 response UMBA claims Exemptions (d), (g), and (u) to withhold responsive records. Exemption (d ) 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." You further indicate "[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, discourage private parties from dealing with UMBA if exposure of sensitive negotiations and discussions could be released prior to a final agreement, and will deprive UMBA of its right to deliberate about policy in a confidential manner." Exemption (g) Exemption (g) applies to:

David P. Mullen, Esq. SPRl 7/388 Page 3 April 5, 2017 trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. C. 4, § 7 (26)(g). A custodian must meet all of the following six ( 6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4 ) Upon an assurance of confidentiality, ( 5) Information provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. UMBA states "[t]his exemption therefore will require UMBA to redact or withhold any trade secret or financial information in UMBA possession to protect these private entities from unwarranted disclosure of their protected business information." Exemption (u) Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns G. L. c. 4, §7 (26)(u). UMBA explains "[a]ny proprietary information of UMBA, or provided to it by private parties, is exempt from disclosure and we will redact or withhold disclosure of this information." Applicability of exemptions; segregable portions UMBA also indicates "[b] ased on your request, after a thorough search, and in accord with the exemptions provided, UMBA is of the opinion that there are no responsive documentation responsive to your request." Based on UMBA's March 20th response, it is unclear which specific responsive records fall within each of the exemptions claimed by UMBA. In order to meet its burden of specificity,

David P. Mullen, Esq. SPRl 7/388 Page 4 April 5, 2017 UMBA must provide a general description of the records withheld under each exemption claimed. See Flatley, 419 Mass at 511 ( custodian has the burden of establishing the applicability of an exemption). Further, UMBA must explain whether any non-exempt, segregable portion of the responsive records can be provided. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records staff attorney contacted you and provided a copy of the file associated with this appeal. You indicated the UMBA would provide a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that the UMBA provide Mr. Vaccaro with a 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Vaccaro