Colman Herman v. University of Massachusetts Building Authority (SPR 20191156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

June 24, 2019 SPR19/1156

David P. Mullen, Esq.

University of Massachusetts Building Authority One Beacon Street, 31 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 (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2019, Mr. Herman requested a copy of the draft lease provided by Accordia Partners in the last stage of the developer selection process. The Authority responded on June 6, 2019, denying access to responsive records pursuant to Exemptions (d), (g), and (i) of the Public Records Law. G. L. c. 4, § 7(26)(d), (g), @. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR19/1156, 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, § 10A(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, § 10(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, § 10(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. SPR19/1156 Page 2 June 24, 2019

The Authority’s June 6" response

In its June 6, 2019 response, the Authority asserts that the responsive record is exempt from disclosure pursuant to the following exemptions under the Public Records Law.

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 subject to disclosure).

Under Exemption (d), the Authority states that this exemption “. . . exempts inter- or intra- agency records relating to policy positions being developed by the agency and which may provide unfair advantage to other parties.” The Authority asserts that “[t]he unwarranted disclosure of the draft lease will have an adverse effect on [the Authority’s] ability to consummate a transaction on behalf of the University, further limiting [the Authority’s] ability to obtain best value or options, and therefore establish policy.” The Authority further asserts that the draft lease “. . . is currently being negotiated and has not been finalized. The lease will not become effective until, if at all, the developer has received all city and state approvals to move ahead with the proposed development. The developer may not even be the final developer until certain preconditions are satisfied.” The Authority contends that “[r]elease of the draft before it becomes effective will damage [the Authority’s] ability to achieve the best terms for its property, discourage private parties from dealing with [the Authority] if exposure of sensitive negotiations and discussions could be released prior to a final agreement, and will deprive [the Authority] of its right to deliberate about the lease in a confidential manner.”

Based on its response, although the Authority indicates that the draft lease “. . . is currently being negotiated and has not been finalized[,]. . .” and has described how disclosure would taint its deliberative process, I find the Authority has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). In

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particular, the Authority has not established that the responsive record was only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not

protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants).

Exemption (g) 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 Exemption (g), the Authority indicates that “[it] is still in a deliberative process and has not entered an arrangement with the developer on the property. This exemption will therefore require [the Authority] to redact or withhold any trade secret or financial information to protect these private entities from unwarranted disclosure of their business information.”

With respect to Exemption (g), although the Authority asserts that “[t]his exemption will ... require [it] to redact or withhold any trade secret or financial information to protect these private entities from unwarranted disclosure of their business information[,]” the Authority has not demonstrated that all six criteria have been met. Particularly, based on the Authority’s response, it is unclear the nature of the governmental policy that is being developed by the Authority, nor is it certain whether any information in the responsive record has been provided as

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a “condition of receiving a governmental contract or benefit.” The Authority is reminded that all six criteria must be met for a proper application of Exemption (g).

Exemption (i) 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 Exemption (i), the Authority asserts that “[n]o final agreement has been entered into with respect to its property at this time; therefore any information that may affect the appraisal of that property must be confidential under this exemption for all the reasons cited under clause (d) and above.” The Authority states that “. . . there is on-going litigation

concerning the property in question and release of the lease (draft or otherwise) will affect the litigation.”

Based on the Authority’s response, I find that the Authority has not met its burden to show that the draft lease is an appraisal of real property related to its ability to acquire property as required by Exemption (i). See id.

Further, it is unclear how the draft lease can be withheld in its entirety. The Authority must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein yv. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

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

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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.

Under its attorney-client privilege claim, the Authority states that it “. . . asserts its privilege to redact or withhold any records containing legal advice provided to [the Authority] officials under standard definitions of the privilege.”

Based on the Authority’s response, I find the Authority has not established the existence of an attorney-client relationship under these circumstances. The Authority did not explain how the information is a communication received during the course of the client’s search for legal advice, nor whether the privilege has been waived. See Suffolk, 449 Mass. at 450 n.9. The Authority must first apply the three-step test in Suffolk to prove that the record or information fall under the protection of the attorney-client privilege and cannot be disclosed to the public.

Please note that under 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, § 10A(a). I understand a Public Records Division staff

attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision.

Conclusion

Given that the Authority did not meet its burden to explain how Exemptions (d), (g), and (i) apply to the record, the requested record may not be withheld. Accordingly, the Authority is ordered to review the record, redact where necessary, and provide Mr. Herman with the responsive record, 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.

David P. Mullen, Esq. SPR19/1156 Page 6 June 24, 2019

Sincerely,

Rebecca S. Kibeco. Murway-

Supervisor of Records

cc: Colman Herman