Bill Forry v. University of Massachusetts Building Authority (SPR 20181449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 10, 2018 SPRlS/1449 David P. Mullen, Esq. University of Massachusetts Building Authority 1 Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Mullen: I have received the petition of Bill Forry of the Dorchester Reporter appealing the response of the University of Massachusetts Building Authority (UMBA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, onSeptember 17, 2018, Mr. Forry requested documents filed in response to UMBA's '"Request for Information' to solicit ideas from private developers for the re-use of the bayside Expo Center Properties owned by UMBA." Mr. Forry also requested recent information on the marketing and negotiation status regarding the redevelopment of the Bayside parcels and UMBA's retention of Newmark Knight Frank to seek potential buyers and partners. UMBA provided a response on September 27, 2018, denying access to responsive records pursuant to Exemptions (c), (h), and (u) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(c), (h), (u). Unsatisfied with UMBA's response, Mr. Forry petitioned this office and this appeal, SPR18/1449, was opened as a result. 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

David P. Mullen, Esq. SPR18/1449 Page 2 October 10, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. UMBA 's September 2fh response In its September 27, 2018 response, UMBA indicates that the requested records may be subject to redaction or withholding because of exempt information contained in the records. UMBA asserts that the following exemptions are applicable to withhold responsive records from disclosure. Exemption (c) UMBA claims it withheld responsive records pursuant to Exemption (c) of the Public Records Law. Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct ,and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

David P. Mullen, Esq. SPR18/1449 Page 3 October 10, 2018 App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under its Exemption ( c) claim, UMBA indicates that "Clause ( c) exempts 'personal or personnel information, including home addresses, or any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' UMBA explains that the records" ... may contain personal information like homes addresses of out of state residents, cell phone numbers, or personal email addresses, the disclosure of which would be an unwarranted invasion of personal privacy .... " Exemption (h) UMBA also indicates that it withheld responsive records pursuant to Exemption (h) of the Public Records Law. Exemption (h) permits the withholding of: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. C. 4, § 7(26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679,691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701. Under its Exemption (h) claim, UMBA indicates that it" ... has engaged Newmark Knight Frank to assist it in the review of the aforementioned RFI' s and the negotiations that arise from that process." UMBA asserts that "[a]s the process has not been completed and a decision

David P. Mullen, Esq. SPR18/1449 Page4 October 10, 2018 has not been made to enter into negotiations with a developer or award a contract as to the Bayside project these records will be withheld until such time as a contract has been awarded." Exemption (u) UMBA further claims that it withheld responsive records pursuant to Exemption (u) of the Public Records Law. Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns G. L. c. 4, § 7(26)(u). Under its Exemption (u) claim, UMBA indicates that "[a]ny proprietary information of the University, or provided to UMBA therefore by private parties, is exempt from disclosure and [UMBA] will redact or withhold disclosure of this information." Burden of specificity 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. UMBA 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, UMBA must identify the type of record(s) it has in its possession that it withheld. Further, UMBA's initial response did not contain the specificity required in a denial of access to public records. With respect to Exemption ( c ), although this Exemption permits the withholding of personal information, as described above, UMBA has not demonstrated that the portions that are being withheld are intimate details of a highly personal nature. UMBA has also not demonstrated that disclosure of the records would result in personal embarrassment to an individual of normal sensibilities nor addressed the availability of the information from other sources. PETA, 477 Mass. at 292. In addition, UMBA did not apply the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the

David P. Mullen, Esq. SPR18/1449 Page 5 October 10, 2018 requested information, substantially outweighs the seriousness of any invasion of privacy. Id. at 291-92. With respect Exemption (h), based on its response, it is unclear ifUMBA is withholding responsive records under the first and/or clause of Exemption (h). UMBA is advised that once the bidding process is complete, records associated with the bids themselves may no longer be withheld pursuant to Exemption (h). "Inter-agency or intra-agency communications" regarding · the bids, however, may be withheld until a decision has been made "to enter into negotiations with or to award a contract to, a particular person." G. L. c. 4, §7 (26)(h). While Exemption (h) permits a records custodian to withhold such deliberative material, it will not operate to permit nondisclosure of the responsive bids or proposals submitted once the closing date for such bids has occurred. As such, I find that UMBA has not met its burden to withhold responsive records under Exemption (h). With respect to Exemption (u), while this Exemption permits the withholding of "trade secrets or other proprietary information of the University of Massachusetts," including those provided by third parties, it is unclear how such information cannot be redacted from the responsive records and non-exempt portions provided. 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, § lO(a). Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). In camera review ofr ecords withheld under a claim ofa ttorney-client privilege G. L. c. 66, § lOA(a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been

David P. Mullen, Esq. SPR18/1449 Page 6 October 10, 2018 withheld on the basis of a claim of the attorney-client privilege, the supervisor of records shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. G. L. c. 66, § lOA(a). Under its attorney-client privilege claim, UMBA indicates that it asserts the" ... privilege to redact or withhold any records containing legal advice provided to UMBA officials under standard definitions of the privilege." Based on UMBA's response, I find that UMBA has not established the existence of an attorney-client relationship under these circumstances. UMBA did not explain how the records are communications received during the course of the client's search for legal advice, or whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. UMBA must first apply the three step test in Suffolk to prove that the records fall under the protection of the attorney-client privilege and cannot be disclosed to the public. In addition, as noted above, pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed." G. L. c. 66, § lOA(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that UMBA did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, UMBA is ordered to review the records, redact where necessary, and provide Mr. Forry 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. UMBA may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

David P. Mullen, Esq. SPR18/1449 Page 7 October 10, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Bill Forry