Colman Herman v. University of Massachusetts Building Authority (SPR 20190808)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 22, 2019 SPR19/808 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 of Colman Herman 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, Mr. Herman requested "a copy of the letter intent and/or related document executed between UMass and/or UMBA with Accordia Partners." Unsatisfied with the response he had received from the UMBA, Mr. Herman petitioned this office and this appeal 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. Current appeal Subsequent to an intervention by a staff member of the Public Records Division, I learned that the UMBA generated a response to Mr. Herman's request on March 6, 2019 that 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. SPR19/808 Page 2 April 22, 2019 informed him "that there are no documents responsive" to his request. Under the Public Records Law, the UMBA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). A representative from the UMBA indicated their willingness to generate a response focused on addressing the concerns that Mr. Herman outlined in his appeal. Accordingly, the response must be made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the UMBA's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman