Matt Berg v. University of Massachusetts - Amherst (SPR 20192509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2020 SPR19/2509 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 of the Massachusetts Daily Collegian appealing the response of the University of Massachusetts - Amherst (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 4, 2019, 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 Appeals The requested records were the subject of previous appeals. See SPR19/2123 Determination of the Supervisor of Records (October 29, 2019) and SPRI 9/2312 Determination of the Supervisor of Records (November 27, 2019). In my November 2th determination, I found that the University had not met its burden to withhold responsive records, in their entirety, under Exemptions (d) and (i) of the Public Records Law. Accordingly, I ordered the University to provide a response to Mr. Berg, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the University°provided a response on December 13, 2019. This response provides additional ~nforination regarding the records the University possesses and its exemption claims. Unsatisfied with the University's response, Mr. Berg petitioned this office and this appeal, SPRl 9/2509, was opened as a result. One Ashburtotl 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 SPR19/2509 Page 2 January 7, 2020 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). 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 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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte University's December 131 response " In its December 13, 2019 response, th~ University states that it possesses "email correspondence between University adininistrators, University counsel, and third party property owners relating to a potential acquisition of the above-referenced real prope1iy, as well as written memoranda and documentation containing intra and inter agency deliberations concerning the terms and feasibility of a potential acquisition. The University also has an appraisal of the real property." The University asserts that because" ... decisions have not been finalized regarding . terms of potential acquisition of the[] property, ... it is categorically withholding the records identified pursuant to" Exemptions ( d) and (i), as well as the attorney-client privilege. 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 repmis 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.

Christine M. Wilda SPR19/2509 Page 3 January 7, 2020 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 University states that "[e]mail correspondence and other written documentation (intra and inter agency memoranda) are exempt from disclosure pursuant to exemption ( d) because they relate to ongoing intra-agency deliberations regarding government decisions." The University explains that "[t]his exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. Massachusetts courts have interpreted this exemption broadly to accomplish the purpose it shares with exemption (5) of the FOIA; that is, the protection of open, frank, inter-agency and intra-agency deliberations regarding government decisions." The University cites DaRosa v. City of New Bedford, 471 Mass. 446 (2015). The University posits that "[d]eliberations regarding a potential acquisition of this real property are still in process, and release of any portion of this documentation now would taint the deliberative process, obliterate the University's ability to engage in open, frank inter agency and intra-agency deliberations regarding government decisions, and put the University at a bargaining disadvantage." Although the University states that "release of any pmiion of this documentation now would taint the deliberative process, obliterate the University's ability to engage in open, frank inter-agency and intra-agency deliberations regarding government decisions, and put the University at a bargaining disadvantage[,]" it remains unclear how disclosure of any segregable portion of the responsive records would compromise or taint the University's deliberative process. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are nanowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. 0. L. c. 66, § 1O (a). Exemption (i) Exemption (i) applies to: appraisals of real prope1iy 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 t:;minent 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 ofreal prope1iy. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241

Christine M. Wilda SPR19/2509 Page 4 January 7, 2020 (2004). Under Exemption (i), the University asserts that "[t]he appraisal [it] has obtained is exempt from disclosure ... because no final agreement has been entered into with respect to the above-referenced prope1iy." Referencing the Supervisor's October 29th determination, the University states that" ... [t]he exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real property." As such, "[a]s no final agreement has been entered into with respect to the property, release of an appraisal would put the University at a bargaining disadvantage, and would contravene any temporary grant of confidentiality afforded to it under M.G.L. c. 66 § 1O ." The University contends that disclosure" . . . would most ce1iainly not be in the public interest." Although Exemption (i) permits the withholding of an appraisal, it is unclear whether segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk, 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). 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. 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. 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).

Christine M. Wilda SPR19/2509 Page 5 January 7, 2020 Citing Suffolk, the University asserts that" ... [it] is withholding emails between University administrators and legal counsel for the University, the purpose of which was to obtain legal advice and assistance regarding a potential acquisition ofreal property." Based on the University's response, it is unclear whether the privilege to these communications have been waived. Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293,306 (2009). Also, as indicated above, pursuant to G. L. c. 66, § lOA(a), I find the University must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Conclusion Accordingly, the University is ordered to review the records, redact only where necessary and provide Mr. Berg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, ~[~ Supervisor of Records cc: Matt Berg