Colman Herman v. University of Massachusetts Building Authority (SPR 20170546)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 5, 2017 SPR17/546 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 § 1O A; 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. Previous appeal This request was the subject of a previous appeal. See SPRl 7 /335 Determination of the Supervisor of Records (March 28, 2017). In my March 28th determination I ordered UMBA to provide Mr. Herman with the requested records or a more detailed response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. UMBA provided a response dated April 13, 2017 in which it provided certain records, but withheld others under Exemptions (d), (g), (i) and (u) of the Public Records Law. Mr. Herman objects to this response and this appeal (SPRl 7 /546) was opened as a result. 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 7/546 Page2 May 5, 2017 UMBA 's April 13th response In its April 13th response UMBA provided certain communications with portions redacted. However, based on this response it is unclear what type of information was redacted and which exemption to the Public Records Law applies to each redaction. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). UMBA also cites Exemptions (d), (g), (i) and (u) to support its position to withhold other records. However, it is unclear which specific responsive records fall within each of the exemptions claimed by UMBA. UMBA must also confirm whether it possesses any other responsive communications. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). I find that a custodial index would be useful in facilitating my review of this matter. See 950 C.M.R. 32.08(5). Said index shall be a public record and shall be contained in one document, adequately describe each withheld record or redaction from a released record, state the exemption or exemptions claimed for each withheld record or each redaction of a record, and the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Id. I understand a Public Records staff attorney contacted you and you indicated UMBA would provide a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that UMBA provide Mr. Herman a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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 calendar days. 950 C.M.R. 32.08(1). Sincerely, f®HA~ Rebecca S. Murray Supervisor of Records cc: Colman Herman