Dusty Christensen v. University of Massachusetts - President's Office (SPR 20190851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 13, 2019 SPR19/0851 Jeff Cournoyer Vice President of Communications Office of the President University of Massachusetts One Beacon Street Boston, MA 02108 Dear Mr. Cournoyer: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the University of Massachusetts' Office of the President (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Christensen requested records involving "University of Massachusetts Office of the President and the UMass Amherst Office of the Chancellor related to the subject of Hampshire College." The Office provided a response on March 25, 2019 in which it withheld responsive records under Exemption (d) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(d). Mr. Christensen appealed the March 25th response to this office. The Office provided a more detailed response to Mr. Christensen on April 25, 2019 and Mr. Christensen appealed. 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). an It is the burden of the records custodian to demonstrate the application of exemption in order to withhold a requested record. G. L. c. 66, § 1 O(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

Mr. Jeff Cournoyer SPR19/0851 Page2 May 13, 2019 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. Exemption (d) The Office 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 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 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). The Office indicated in the April 25th response to Mr. Christensen that of the records withheld "54 have been withheld because they relate to policy development for a policy that is still being developed and are exempt from disclosure under exemption (d)." The Office's response explains that "all of the records withheld constitute communications among personnel internal to UMass and thus are indisputably 'intra-agency."' The Office establishes that the responsive records withheld under Exemption ( d) are "inter-agency or intra-agency memoranda or letters" 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). However, in Mr. Christensen's April 25th appeal he contends "UMass and Hampshire College officials have stated, on several occasions, that those deliberations are no longer ongoing, both in public and in communications with the Daily Hampshire Gazette." He also believes "that no policy is currently being developed, and as such the documents in question do not fall under the category ofrecords allowed to be withheld under exemption (d)." Lastly, Mr. Christensen says "it seems clear that a decision has been reached with regard to a possible partnership between UMass and Hampshire College." Based on this information, it is unclear whether the policies referenced are still currently being developed. As a result, the Office needs

Mr. Jeff Cournoyer SPR19/0851 Page 3 May 13, 2019 to provide further clarification in order for the records to be exempt from disclosure under Exemption (d). See G. L. c. 66, § lO(b)(iv). 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); 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). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass, at 460. 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). In the Office's April 251hresponse to Mr. Christensen, the Office states that of the records withheld "(3) documents withheld are documents in which legal advice is being sought or provided." To withhold records pursuant to the attorney-client privilege, a records access officer must establish the existence of an attorney-client relationship and clarify whether 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, whether the communications were made in confidence, and whether the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. at 450 n.9. The Office provided Mr. Christensen a detailed description of the communication redacted pursuant to the attorney-client privilege. The Office also included the date of the communication; the names of the attorney and Office employee; the substance of the records; and grounds upon which the attorney-client privilege is being claimed. See G. L. c. 66, § lOA(a). The Office established that the redacted material was privileged communications from an attorney to a client seeking legal advice and the privilege had not been waived. I find the Office met its burden to redact the information within the emails under the attorney-client privilege.

Mr. Jeff Cournoyer SPR19/0851 Page4 May 13, 2019 Conclusion Accordingly, the Office 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, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen