Colman Herman v. University of Massachusetts (SPR 20180601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15,2018 SPR181601 Jeffrey P. Cournoyer Vice President of Communications University of Massachusetts Office of the General Counsel One Beacon Street, 3 lStF loor Boston, MA 02108 Dear Mr. Cournoyer: I have received the petition of Colman Herman appealing the response of the University of Massachusetts (University) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 17,2018, Mr. Herman requested "hard copies of any and [sic] communications in the files of [the University's president] that deal with . . . 1) The University of Massachusetts Dartmouth (Dartmouth) accepting students from Mount Ida college [(MIC); and] 2) The University of Massachusetts Amherst (Amherst) buying the [MIC] property . . . for the period January 1,2018 to the present." Mr. Herman mentioned that "[c]ommunications include, but not limited to, emails, letters, memoranda, faxes, and notes . . ." The University provided a response on April 30,201 8, denying acc pursuant to Exemptions (d), (g), and (i) of the Public Records Law. G. L. c. 4, 5 7(26)(d), (g), (i). Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR181601, was opened as a result. While this appeal was pending, the University provided a supplemental response on May 8,201 8. Tlze 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, 5 1O A(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 1 1 (1 995) (custodian has the burden of . 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 Page 2 May 15,2018 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, 5 lO(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 3ot" and May 8'" responses In its April 3oth and May 8thr esponses, the University indicates that it possesses the following records: "1) memoranda or letters (including email) internal to [the University] . . .; memoranda or letters (including email) between [the University] and UMBA . . .; 3) documents exchanged between the University and MIC; andlor 4) documents provided by the University andlor MIC to the Office of the Attorney General ('OAG')." The University further asserts that the following exemptions are applicable to withhold responsive records from disclosure. Exemption (d) The University indicates 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 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'~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, 5 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 indicates "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 indicates that as part of its negotiations with MIC "for a possible purchase by UMBA

Jeffrey P. Cournoyer Page 3 May 15,2018 (on behalf of [the University]) of certain assets, the parties also have discussed certain terms on which [Dartmouth] may accept MIC students. The negotiations 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 asserts 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 further indicates that these two documents, "1) memoranda or letters (including email) internal to [the University] (i.e., intra-agency') and 2) memoranda or letters (including email) between [the University] and UMBA (i.e., 'inter-agency') . . . plainly are covered under [Elxemption (d)." The University contends that because no final terms have been agreed on, "[d]isclosure of the records to 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 claims 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 For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (I) 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.

Jeffrey P. Cournoyer Page 4 May 15,2018 The University asserts that Exemption (g) applies to these records, because "[tlhe information provided by MIC to [the University] is commercial and financial, and has been voluntarily provided by MIC to [the University] to permit [it] to consider whether and on what terms it would buy the MIC property (i.e., for use in developing governmental policy). The governmental policy at issue is whether [the University] -the state's only public university- should assume financial burdens to create additional learning opportunities for its students and/or whether and on what terms [Dartmouth] may accept students of MIC." The University further asserts that the information, which was provided upon a promise of confidentiality "was not provided 'by law' or as a condition of receiving a governmental benefit." The University posits that any records that fall outside Exemption (d) are exempt under Exemption (g). Exemption (i) The University indicates that it withheld responsive records pursuant to Exemption (i) of the Public Records Law. 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 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 of real 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 of specificity; 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, 5 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.

Jeffrey P. Cournoyer Page 5 May 15,2018 With respect to the University's Exemption (d) claim, the University claims that the records in its possession are inter-agency and intra-agency memoranda or letters, because the documents constitute communications among members of the University and between the University and UMBA. The University asserts that the proposed agreement is conditional and has not been finalized yet. The University further asserts that negotiations with MIC are currently on-going and no final terms have been agreed upon, therefore, "[d]isclosure of the records to the public could jeopardize the potential transaction to the detriment of [the University] and its students." As a result, the University contends that the requested records may be withheld under Exemption (d). Based on the University's response, I find that the University has met its burden to withhold portions of the responsive records under Exemption (d). However, it remains unclear whether there are factual reports within these records. The University is advised that any information contained in these records that is factual in nature is subject to disclosure as Exemption (d) does not apply to such information. It should also be noted that a change in the status of the on-going deliberation could impact the applicability of Exemption (d) to the withheld records. With respect to Exemption (g), the University indicates that the responsive records contain commercial and financial information, voluntarily provided to the University for developing a government policy. The University explains that, this governmental policy is one that may allow the Commonwealth's only public university to create additional learning opportunities for its students and on what terms Dartmouth may accept students from MIC. The University claims that MIC provided the information upon an assurance of confidentiality and was not required by law to do so. Whereas the University claims the information was not provided as a condition of receiving a governmental contract or benefit, I find that the six criteria under Exemption (g) have been met and the University may permissibly withhold such commercial and financial information from the responsive records under this Exemption. With respect to the University's Exemption (i) claim, 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. Despite my finding that the University has met its burden to withhold records under Exemptions (d), (g), and (i) of the Public Records Law, it is unclear whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Pursuant to the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, fj 10(a); Reinstein v. Police Cornm'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.

Jeffrey P. Cournoyer Page 6 May 15,2018 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 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 day. 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 within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman