Colman Herman v. University of Massachusetts - President's Office (SPR 20180698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29, 2018 SPR18/698 Jeffrey P. Cournoyer University of Massachusetts President's Office ih 225 Franklin Street, 1 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]." Previous appeal This request was the subject of a previous appeal. See SPR18/533 Determination of the Supervisor of Records (Supervisor) (May 3, 2018). In my May 3rd determination, I found that the University had not met its burden to withhold responsive records in their entirety under Exemptions (d), (g), and (i) of the Public Records Law. As a result, I ordered the University to review the records, redact where necessary and provide Mr. Herman with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the May 3rd determination, the University provided a supplemental response on May 8, 2018, reiterating that Exemptions (d), (g), and (i) apply to withhold the entire records from disclosure. G. L. c. 4, § 7(26)(d), (g), (i). Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPRl 8/698, was opened as a result. Subsequent to the opening of this appeal, the University provided a supplemental response on May 24, 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 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 SPR18/698 Page 2 May 29, 2018 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, § 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 May 81 h response In its May 8th response, the University asserts that its reliance on the previously claimed exemptions is proper. The exemptions claimed to withhold responsive records are as follows: 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 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).

Jeffrey P. Cournoyer SPR18/698 Page 3 May 29, 2018 Under its Exemption ( d) claim, the University asserts that "the contemplated transaction currently is being negotiated, and there is no final agreement between [the University] and MIC." The University asserts that the records in its position include "1) memoranda or letters (including email) internal to [the University] (i.e., 'intra-agency') and 2) memoranda or letters (including email) between [th~ University] and UMBA (i.e., 'inter-agency') [which] plainly are covered under [E]xemption (d)." The University further asserts that "[d]isclosure of the records to the public could jeopardize the potential transaction to the detriment of [the University] and its students." 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: (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 reiterates that "[t]he information provided by MIC to [the University] is commercial or financial, and has been voluntarily provided by MIC to [the University] to permit [the University] to consider whether and what terms it would buy the MIC property (i.e., for use in developing governmental policy)." The University explains that "[t]he 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." 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).

Jeffrey P. Cournoyer SPR18/698 Page4 May 29, 2018 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 of real property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241 (2004). Under its Exemption (i) claim, the University asserts that" ... the purpose of [this] [E]xemption is to 'provide[] governmental agencies with a temporary grant of confidentiality while engaged in the acquisition ofreal property.'" Again, the University contends that "[a]ny responsive document that fall outside the confines of exemption (i) fall within [E]xemption ( d) or [E]xemption (g) and, therefore, are exempt from disclosure." The University's May 2l11 response to SPRJ 8/533 While this appeal was pending, the University provided a response on May 24, 2018. This letter appears to respond to SPR18/533, which is the subject of this appeal, and SPR18/601 Determination of the Supervisor of Records (May 15, 2018). In this response, the University indicates that "[a]lthough the parties' discussions and deliberations continue with respect to the effectuation of the agreement and matters related to the real estate appraisal and agreement," the University will at this time provide Mr. Herman "with the Asset Purchase and related closing documents." As a result, the University provided 442 pages of responsive records to Mr. Herman. Whereas this appeal was opened based on Mr. Herman not receiving responsive records, I will consider this administrative appeal closed. Mr. Herman is advised that he may appeal the substantive nature of the University's response, within ninety days. See 950 C.M.R. 32.08(1). The University's May 2l11 response to SPRJS/601 Also, in its May 24th response, the University addresses SPRl 8/601, which was the subject of a previous appeal. See SPRl 8/601 Determination of the Supervisor of Records (May

Jeffrey P. Cournoyer SPRlS/698 Page 5 May 29, 2018 ih 15, 2018). The University indicated that with respect to Mr. Herman's April 1 request, due to the magnitude of the request, it would have to "review in excess of 25,000 documents (many with attachments, which have not been counted) relating to the transaction (likely hundreds of thousands of pages), to locate potentially responsive, non-privileged documents." The University explains that it "estimate[s ] in good faith that this will take approximately 416 man hours and at least eight weeks to complete." In addition, you explain to Mr. Herman that "if [he] would consider narrowing [his] request, [you] would reassess and provide [him] with a good faith fee estimate for the narrowed request." Conclusion In light of the above information, this office encourages the University and Mr. Herman to communicate further to enable the University to provide the requested public records. G. L. c. 66, § 1O (b )(v ii) ( a state agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). The University is reminded that a copy of its 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. I understand a Public Records Division staff attorney contacted your office about this appeal. Sincerely, ,e...,..,...~ Rebecca S. Murray Supervisor of Records cc: Colman Herman