Colman Herman v. University of Massachusetts Building Authority (SPR 20171158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 8, 2017 SPR17/1158 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 ofthe 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. Previous appeals This request was the subject of previous appeals. See SPR17/335 Determination ofthe Supervisor ofRecords (March 28, 2017); SPR17/546 Determination ofthe Supervisor of Records (May 5, 2017); SPR17/791 Determination ofthe Supervisor ofRecords (June 23, 2017); SPR17/960 Determination ofthe Supervisor of Records (July 27, 2017). I closed SPR17/960 by ordering UMBA to 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 August 23, 2017. Mr. Herman objects to this response and this appeal (SPR17/1158) was opened as a result. UMBA 's August 23rd response In its August 23rd response UMBA indicates "[b] ased on conversations with the Supervisor of Public Records office the term 'communications' was narrowly defined, which led to the responses previously provided. Those responses included emails, letters, and faxes, but not memoranda. The term 'communications' has now been considered to include memoranda." 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. SPR17/1158 Page 2 September 8, 2017 UMBA continues by stating "[a]ny communications/memoranda were in the nature ofthe potential usage and market value for the development of the so-called Bayside area in Dorchester. The Building Authority is intent on exploring ways to maximize the usage of the Bayside property for the benefit ofUMass and the surrounding community." You assert that "[c]ertain parties had inquired as to the long-term real estate development of the area, however there had been no clear plans or decisions as to what, if any, the development could be or the value to be received therefrom." UMBA claims "[t]he disclosure of information within any prior communications/memoranda, if any, would interfere with the Building Authority's endeavor" and you cite Exemption (d) of the Public Records Law in support of withholding 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 subclause 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 ofHurnan 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 claims that "[t]he disclosure of any such communications/memoranda would have·an adverse effect on the Building Authority's ability to attract vendors or parties interested in working with the University; limiting the Building Authority's ability to obtain the highest and best value for the Bayside site." You assert that "UMBA must have confidential discussions internally and externally while it is considering policy development. Disclosure of such information would have a chilling effect on the value a prospective suitor may propose, which will deprive the Building Authority of achieving the best value for not only UMass, but the surrounding community." However, it is unclear how there are no purely factual matters, or "reasonably completed factual studies or reports on which the development of such policy positions has been or may be

David P. Mullen, Esq. SPR17/1158 Page 3 September 8, 2017 based" within the records that must be disclosed. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, with respect to the portions of the records that pertain to policy or legal recommendations, UMBA must provide additional information regarding the nature of the deliberation. Please note 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, § 10(a)(ii). I understand a Public Records Division staff attorney contacted you about this appeal. In camera inspection ofrecords It is the finding of this office that an in camera review of an unredacted copy of the responsive records withheld under Exemption (d) would facilitate a determination as to the applicability of exemption claims made by UMBA. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Accordingly, you are hereby ordered to provide this office with an unredacted copy of the responsive records without delay. UMBA may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised

David P. Mullen, Esq. SPR17/1158 Page 4 September 8, 2017 that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman