Colman Herman v. University of Massachusetts - President's Office (SPR 20180533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2018 SPR18/533 Jeffrey P. Cournoyer University of Massachusetts President's Office 225 Franklin Street, 12th Floor Boston, MA 02110 Dear Mr. Cournoyer: I have received the petition of Colman Herman appealing the response of the University of Massachusetts President's Office (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 9, 2018, Mr. Herman requested "a hard copy and an electronic copy of the recent agreement made between the University of Massachusetts and Mount Ida College [MIC]." The University denied access to the responsive records pursuant to Exemptions (d), (g), and (i) of the Public Records Law. G. L. c. 4, § 7(26)(d), (g), (i). Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR18/533, was opened as a result. Subsequent to the opening of this appeal, the University provided a supplemental response on May 1, 2018. 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. 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

Jeffrey P. Cournoyer SPR18/533 Page 2 May 3, 2018 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. The University's April 1th and May pt responses In its April 19th and May 1st responses, the University indicated that the records cannot be produced at this time because the following exemptions are applicable to withhold the records from disclosure. Exemption (d ) The University indicated that it withheld responsive records 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 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 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 subject to disclosure). Under its Exemption (d) claim, the University indicated that the records" ... relate to policy development for a policy that is still being developed, which are exempt from disclosure under [E]xemption (d)." The University indicated that "the proposed possible agreement between MIC and the [University] is highly conditional and is only an agreement in principle at this time; there has been no final agreement between [the University] and MIC." The University asserts that the negotiations for a possible purchase by UMBA, on behalf of the University, "are ongoing and any deal is subject to regulatory approval by state agencies." The University indicates that it anticipates that the transaction will be completed in late May. As such, the University reiterates that documents in its possession, "relating to a potential final agreement between [the University] and MIC ... relate to policy that is still being developed ...." The University posits that because no final terms have been agreed on, "[d]isclosure of the records to

Jeffrey P. Cournoyer SPR18/533 Page 3 May 3, 2018 the public could jeopardize the potential transaction to the detriment of [the University] and its students." The University asserts that just as private parties maintain strict confidentiality during its negotiations, the University "also must safeguard the confidentiality of the documents relating to its consideration of this potential transaction. .. [Otherwise, it] would be at a significant competitive disadvantage in the negotiations if it were compelled to reveal its position and strategy, when private parties - including MIC - are not similarly obligated." Exemption (g) The University claimed it withheld responsive records pursuant to Exemption (g) of the Public Records Law. Exemption (g) applies to: 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). For this exemption to apply to withhold a record, 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 not provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. Under its Exemption (g) claim, the University indicated that the records" ... comprise commercial or financial information of third parties ... that was voluntarily provided to [the University] in the course of discussions of the potential transactions (i.e., for use in developing governmental policy), and were provided subject to a non-disclosure agreement-and express promise of an assertion of applicable public records exemptions where appropriate, and, more generally, upon a promise of confidentiality. ..." Exemption (i) The University indicated that it withheld responsive records pursuant to Exemption (i) of the Public Records Law.

Jeffrey P. Cournoyer SPR18/533 Page 4 May 3, 2018 Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G. L. C. 4, § 7(26)(i). The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent .domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition ofreal property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241 (2004). Under its Exemption (i) claim, the University indicates that the "discussions between [the University] and MIC relate to potential purchase of the MIC property by [the University]. Thus, many of the documents at issue constitute appraisals of real property to be acquired, and no final agreement has been entered into ...." Burden ofs pecificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to the University's Exemption (d) claim, I find that the University has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption ( d). In particular, the University has not demonstrated that the responsive records were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra-agency" under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It should also be reiterated that any information contained in these records that is factual in nature is always subject to disclosure as Exemption (d ) does not apply to such information.

Jeffrey P. Cournoyer SPR18/533 Page 5 May 3, 2018 With respect to Exemption (g), although the University asserts that the responsive records were "voluntarily provided to an agency for use in developing governmental policy ... ," it is unclear the nature of the governmental policy that is being developed by the University. The University is reminded that all six criteria must be met for a proper application of Exemption (g). With respect to Exemption (i), based on the University's response, to the extent that the responsive records contain documents that constitute appraisals of real property to be acquired, I find that those portions may properly be withheld from public disclosure. However, it is unclear how the agreement can be withheld in its entirety. The University must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the University did not meet its burden to explain how Exemptions ( d), (g), and (i) permit it to withhold responsive records in their entirety, the requested records may not be entirely withheld. Accordingly, the University is ordered to review the records, redact where necessary, and provide Mr. Herman with responsive records, 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. The University may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman