Matt Berg v. University of Massachusetts - Amherst (SPR 20192312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 27, 2019 SPR19/2312 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts -Amherst 390 Whitmore Administration Building 181 President's Drive Amherst, MA O1 003 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; 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. Previous Appeal The requested records were the subject of a prior appeal. See SPR 19/2123 Determination of the Supervisor of Records (October 29, 2019). In my October 29th determination, I ordered the University to provide a supplemental response to Mr. Berg. The University provided this response on November 13, 2019, providing additional information regarding the records it possesses. Unsatisfied with the University's response, Mr. Berg petitioned this office and this appeal, SPRl 9/2312, was opened as a result. The University's Response In its November 13th response, the University states "[a]t this time, decisions have not been finalized regarding terms of any potential acquisition of the above-referenced buildings and/or land. On further review, the information you have requested, to the extent it exists, is 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 SPR19/2312 Page 2 November 27, 2019 exempt from disclosure pursuant to M.G.L. c. 4, §7, cl. 26(d) and (i)." 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 mu~t also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its October 16111 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 Exemptions (d) and (i). 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).

Christine M. Wilda SPR19/2312 Page 3 November 27, 2019 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 of real 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, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 l. The University did not identify the responsive records that it has withheld under Exemptions ( d) and (i). To deny access to a record or pmiion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or pmiions 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 inter- or intra-agency memoranda within the meaning of Exemption (d). See G. L. c. 4, § 7(26)(d). Neither has the University 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 supporting documentation. It is unclear what documents the University is withholding, and how they are with the categories protected by Exemptions ( d) and (i). The University must clarify this matter. 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 Exemptions ( d) and (i). See id. Fmiher, it remains 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).

Christine M. Wilda SPR19/2312 Page 4 November 27, 2019 Conclusion Accordingly, the University 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