Colman Herman v. University of Massachusetts Building Authority (SPR 20190663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2019 SPR19/0663 David P. Mullen, Esq. Deputy Director/General Counsel University of Massachusetts Building Authority One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Mullen: I have received the petition from Mr. Colman Herman appealing the nomesponse from the University of Massachusetts Building Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested records concerning a copy of a proposal for a property. The Authority on March 26, 2019 provided Mr. Herman with a response to his request. Mr. Herman appealed the Authority's response to this office on March 28, 2019. 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, § 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. 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. SPR19/0663 Page2 April 11, 2019 Exemption (d) The Authority is withholding records under Exemption ( d). 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 always subject to disclosure). 1 The Authority indicates in the March 26h response to Mr. Herman that the records constitute "inter- or intra- agency records relating to policy positions being developed by the agency and which may provide unfair advantage to other parties. UMBA is in the process of negotiating the lease terms with [3rd party]. No final decisions have been made as of yet, and deliberations are ongoing." The Authority goes on to explain that the "[r]elease of the proposal(s) before all terms and conditions have been fully negotiated will damage UMBA's ability to achieve the best terms for its property, which will directly impair the University and its students, discourage private parties from dealing with UMBA if exposure of sensitive negotiations and discussions could be released prior to a final agreement, and will deprive UMBA of its right to deliberate about the proposal and policy in a confidential manner." The Authority believes that the disclosure of the proposal "would have an adverse effect on UMBA's ability to attract vendors or parties interested in working with the University, further limiting UMBA's ability to obtain the best value or options for UMBA, the University and its students." The Authority's response does not make clear that the proposal withheld is an "inter agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption (d). See G. L. c. 66, § lO(b)(iv); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Despite the Authority's explanation, it still has not established that the proposal is an inter or intra agency communication and not a document received from, or provided to, a private enity. See SPRl 7/1158 Determination of the Supervisor of Records (January 29, 2018). Therefore, the Authority has not established how the records at issue are

David P. Mullen, Esq. SPR19/0663 Page 3 April 11, 2019 "inter-agency or intra-agency memoranda or letters" as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995). As a result, the Authority has not met its burden to explain how the proposal is exempt from disclosure in its entirety pursuant to Exemption (d). See G. L. c. 4, §7 (26)(d). Conclusion Accordingly, the Authority is ordered to provide a response consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. Sincerely, {?J;wA~ Rebecca S. Murray Supervisor of Records cc: Colman Herman