Allison Jarmanning v. University of Massachusetts - President's Office (SPR 20180624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May18, 2018 SPRlS/624 Jeffrey P. Cournoyer Vice President of Communications University of Massachusetts -President's Office 11 225 Franklin Street, li Floor Boston, MA 02110 Dear Cournoyer: I have received the petition of Allison Jarmanning appealing the response of the University of Massachusetts (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on April 20, 2018, Ms. Jarmanning requested the following records: • "For the time period January 2014 to present, any records -- including email correspondence, memos, text messages or other records -- mentioning Mount Ida College (which could also be referred to as "Mount Ida," "Mt. Ida" or any other combination therein), or Mount Ida President ... , Provost ... , or CFO ... In particular, I am interested in records created or received by: UMass Amherst Chancellor ... , Deputy Chancellor ... and their chiefs of staff or other leadership within their offices." • "For the time period January 2014 to present, any records -- including email correspondence, memos, text messages or other records -- mentioning Mount Ida College (which could also be referred to as "Mount Ida," "Mt. Ida" or any other combination therein), or Mount Ida President ... , Provost ... , or CFO ... In particular, I am interested in records created or received by: UMass President ... , Senior Vice President ... , Executive Vice President ... , and their chiefs of staff or other leadership within their offices." The University provided a response on May 3, 2018, denying access to 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, Ms. Jarmanning petitioned this office and this appeal, SPRl 8/624, was opened as a result. While this appeal was pending, the University provided a supplemental response on May 15, 2018. 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 Cournoyer SPR18/624 Page 2 Mayl8, 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, § 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, § 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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 May 3rd and 15th responses In its May 3rd and May 15th responses the University indicates that while there are documents reflecting communications between it and Mount Ida College (MIC), the records cannot be produced at this time because the following exemptions are applicable to withhold the 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 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 maybe 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

Jeffrey Cournoyer SPR18/624 Page 3 May18, 2018 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 indicates that Ms. Jarmanning's assertion that '"many final agreements and decisions have been made"' is not accurate and asserts that the University and MIC "are in discussions regarding a possible agreement between [sic] for the potential purchase of property and assets, but it is only an agreement in principle at this time; there has been no final agreement between [the University] and MIC." The University indicates that it is currently engaged in negotiations with MIC "for a possible purchase by the [(University of Massachusetts Building Authority)] UMBA ( on behalf of [the University]) of certain MIC assets." The University asserts that "[t]he 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 soon. As such, the University asserts that documents in its possession, "relating to a potential final agreement between [the University] and MIC ( or, potentially, among UMASS, UMBA and MIC) relate to policy that is still being developed and are exempt from disclosure under [E]xemption ( 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 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:

Jeffrey Cournoyer SPR18/624 Page4 May18, 2018 (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. The University asserts that Exemption (g) applies to these records, because "[t]he 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 ofreceiving a governmental benefit." The University posits that any records that fall outside Exemption ( d) are exempt under Exemption (g). Exemption (i) The University states 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 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 ...."

Jeffrey Cournoyer SPR18/624 Page 5 May18, 2018 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, § 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. The University did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the University must identify the type ofrecord(s) it has in its possession that it withheld. With respect to the University's Exemption (d) claim, the University 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 to extent that portions of the responsive records constitute "inter-agency or intra-agency memoranda or letters" those portions may properly be withheld under Exemption ( d). However, it is unclear if the entire records are "inter-agency or intra-agency memoranda or letters." It is additionally uncertain 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.

Jeffrey Cournoyer SPR18/624 Page 6 May18, 2018 Despite my finding that the University has met its burden to withhold portions of the 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. 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). Status of on-going deliberation While this appeal was pending, this office received further correspondence from Ms. Jarmanning on May 15, 2018. In this communication, Mr. Jarmanning indicates that she understands the sale was expected to close on May 16th. In light of this information, it is unclear whether the University's continued deliberation remains on-going. The University must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. 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 Ms. Jarmanning 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: Allison Jarmanning