Colman Herman v. University of Massachusetts Building Authority (SPR 20200802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2020 SPR20/0802 David P. Mullen, Esq. University of Massachusetts Building Authority One Beacon Street, 31st 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, Mr. Herman requested: 1) “The Request for Information that was issued for the Calf Pasture Pumping Station 2) The submissions in response to #1 above.” The Authority provided a response on May 15, 2020, providing a record responsive to request #1, and withholding records response to request #2 pursuant to Exemptions (d), (g), and (h) of the Public Records Law. Unsatisfied with this response, Mr. Herman petitioned this office and this appeal, SPR20/0802, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. SPR20/0802 Page 2 June 2, 2020 Current Appeal In its May 15, 2020 response, the Authority states that it is withholding responsive records pursuant Exemptions (d), (g), and (h) of 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). In its response, the Authority argues that “[t]he unwarranted disclosure of the submissions for the requests for information will have an adverse effect on UMBA’s ability to attract vendors or parties interested in working with the University, further limiting our ability to obtain best value or options. UMBA must be able to review any submissions internally while it is considering policy development.” The Authority further claims that “[r]elease of the submissions prematurely will damage UMBA’s ability to achieve the best terms for its property, discourage private parties from dealing with UMBA if exposure of sensitive submissions could be released prior to a request for proposals is finalized, and will deprive UMBA of its right to not only deliberate about policy in a confidential manner, but to achieve the best value and results for its students, the University of Massachusetts and the Commonwealth of Massachusetts.” The Authority additionally explains that it “has requested information to assist it in the development of the Calf Pasture site. The submissions are being evaluated to determine if, and to what extent the RFP will consist of. That decision has not been arrived at yet. As the process has not been completed and a decision has not been completed as to the Calf Pasture project these Records must be withheld until such time as this process has been completed to ensure a competitive process.”

David P. Mullen, Esq. SPR20/0802 Page 3 June 2, 2020 The language of Exemption (d) expressly limits its application to “inter-agency or intra- agency memoranda or letters.” See G. L. c. 4, § 7(26)(d). Based on the Authority’s response, it -- appears it is withholding documents it received from outside parties. Accordingly, the requested submissions may not be withheld under Exemption (d). Exemption (g) The Town indicated that it withheld responsive records pursuant to Exemption (g) of the Public Records Law. 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 subparagraph 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. With respect to Exemption (g), the Authority states that “[t]his exemption applies to information submitted by external parties relating to the potential development of UMBA property. UMBA is still in a deliberative process and has not made any decision about its property. Any information provided by private parties at this time has been submitted for potential ideas and not for a contractual consideration.” The Authority argues that “[t]his exemption will therefore require UMBA to redact or withhold any trade secret or financial information to protect these private entities from unwarranted disclosure of their protected business information. The information provided is intended to develop policy for the University of Massachusetts. Respectfully, all of the conditions for Exemption (g) are met under this scenario.” Despite the Authority’s response, it is unclear whether every element of the exemption has been met. Specifically, it is unclear what information was submitted in response to the RFI,

David P. Mullen, Esq. SPR20/0802 Page 4 June 2, 2020 and how this information constitutes “trade secrets or commercial or financial information.” It is additionally unclear whether the information was provided “upon an assurance of confidentiality.” See G. L. c. 4, § 7(26)(g). The Authority must clarify these matters. Exemption (h) Exemption (h) permits the withholding of: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. c. 4, § 7(26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701. With respect to Exemption (h), the Authority states that a “decision has not been made ‘… to enter into negotiations with or to award a contract to, a particular person (or developer).’ In the initial RFI responding parties were asked to provide expressions of interest, and ideas for potential development.” [emphasis in original]. The Authority further explains that “[t]he RFI’s are in the process of being reviewed. Discussions are now ongoing to determine which submission are the best option for UMBA, UMass and its students. The review process has not been completed as of yet and thus the documents concerning same are hereby exempt.” Lastly, the Authority states: “Until such time as the submissions have been formulated into an RFP UMBA relies on the statutory exemptions enumerated and maintains the information you have requested is exempt at this time.” Based on the Authority’s response, it is unclear how the responsive records fall within categories established in Exemption (h). The Authority states it requested “expressions of interest, and ideas for development.” It is unclear how responses to the RFI constitute “proposals [or] bids to enter into any contract or agreement” within the meaning of Exemption (h). The Authority must provide further explanation regarding this matter.

David P. Mullen, Esq. SPR20/0802 Page 5 June 2, 2020 Conclusion Accordingly, the Authority is ordered to provide a response to Mr. Herman in a manner consistent with this order, the Public Records Law, and its Regulations as soon aspracticable. A copy of this 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: Colman Herman