Colman Herman v. University of Massachusetts Building Authority (SPR 20170791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S Murray Supewisor of Records June 23,2017 SPRl71791 David P. Mullen, Esq. Deputy Director and General Counsel University of Massachusetts Building Authority One Beacon Street, 3 lStF loor Boston, MA 02 10 8 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 5 1OA; -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 ICraft, 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 previous appeals. See SPRl71335 Determination of the Supervisor of Records (March 28,20 17); SPR171546 Determination of the Supervisor of Records (May 5, 201 7). In my May 5th determination I closed SPR171546 with the proviso that UMBA provide Mr. Herman a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. UMBA provided a response dated May 19, 2017. Mr. Herman objects to this response and this appeal (SPR171791) was opened as a result. UMBA 's May 1 9thr esponse In its May 19 thr esponse UMBA cites Exemption (d) and indicates "[rlelease of the discussions of agency staff to or with external parties will damage UMBA's ability to achieve One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

David P. Mullen, Esq. Page 2 June 23,2017 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." UMBA also states it "has provided all communications in its possession relative to your request and has attached pursuant to the Supervisor of Public Record's Order a Custodial Index, identifying the documents, the information redacted and the exemptions relied upon." Within the index, UMBA indicates personal email addresses and personal telephone numbers were redacted from four emails under Exemption (u) of the Public Records Law. G. L, c. 4, 5 7(26)(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." I find UMBA has not met its burden to demonstrate how Exemption (u) applies to the redacted information. See Dist. Attorney for the Norfolk Dist. v. Flatlely., 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Further, based on the May 19" response it is unclear if UMBA is withholding responsive records under Exemption (d), or if it has, in fact "provided all communications in its possession relative to your request." 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 of records at the time of the request. See G. L. c. 66, 5 lO(a)(ii). Therefore, UMBA must clarify whether it possesses any additional responsive records. I understand a Public Records Division staff attorney contacted you about this appeal. 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, Rebecca S. Murray Supervisor of Records cc: Colman Herman