Matt Berg v. University of Massachusetts - Amherst (SPR 20192123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2019 SPR19/2123 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts - Amherst 390 Whitmore Administration Building 181 President's Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Matt Berg appealing the response of the University of Massachusetts - Amherst (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Berg requested ... all email correspondence between UMass Amherst and Fraternities and Sororities associated with the university, in regard to the potential or completed acquisition of buildings or land. This includes offers from the university to purchase a building or land, negotiations between the university and Fraternities and Sororities, and emails following the acceptance or denial of an offer. Any additional documentation such as contracts or legal documents should be included. Tlte University's Response The University responded on October 16, 2019, withholding responsive records pursuant to Exemption (i) of the Public Records Law. Unsatisfied with this response, Mr. Berg petitioned this office and this appeal, SPR 19/2123, was opened as a result. Tlte 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). 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

Christine M. Wilda SPR19/2123 Page 2 October 29, 2019 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 p01iion of the responsive record. Current Appeal In its October 16th response, the University states that it "has identified records which it will not produce because they are exempt under the provision of the public records statute," claiming protection·under Exemption (i). 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 ofreal property, either through a purchase or an eminent domain proceeding, the . same degree of confidentiality that is afforded to private paiiies. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition ofreal property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241 (2004). Burden ofS pecificity 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, § lO(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The University did not identify the responsive records that the University withheld under Exemption (i). To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, 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) .. The University has not demonstrated that the withheld records are "appraisals of real prope1iy acquired or to be acquired." See G. L. c. 4, § 7(26)(i). Mr. Berg's request was for emails regarding land acquisition, as well as supp01iing documentation. It is unclear what documents the University is withholding, and how they are "appraisals" within the meaning of Exemption (i). The University

Christine M. Wilda SPR19/2123 Page 3 October 29, 2019 must clarify this matter. Additionally, the University has not established that at this time, a final agreement has not been entered into, litigation related to the appraisal has not terminated, and the time within which to commence litigation has not passed. See id. Therefore, based on the University's response, I find that it has not met its burden to show that the responsive records may be withheld under Exemption (i). See id. Fmiher, it is unclear how, should an exemption apply, responsive records can be.withheld in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Depaiiment is ordered to provide a response to Mr. Berg consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. 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: Matt Berg