Noah Bombard v. University of Massachusetts Medical School - Office of Management (SPR 20222839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2022 SPR22/2839 Laura J. Harris, J.D. Legal Associate Office of Management University of Massachusetts Medical School 55 Lake Avenue North Worcester, MA 01655 Dear Attorney Harris: I have received the petition of Noah Bombard appealing the response of the University of Massachusetts Chan Medical School (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 23, 2022, Mr. Bombard requested the following: [1] Copy of 1997 agreement on transfer of assets to UMMHC from the University of Massachusetts or University of Massachusetts Medical School. [2] Electronic copies of emails within the date range of Jan. 1, 2021 to Nov. 23, 2022 from or to any of [a list of named individuals] . . . that include [a list of specified search terms.] [3] Copy of payments made to and receipts from [a named law firm] from the University of Massachusetts and or UMass Chan Medical School from Jan. 1, 2021 to Nov. 17. 2022. The Office responded on December 8, 2022, denying the request. Unsatisfied with the Office’s response, Mr. Bombard appealed, and this case 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 agency or 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

Laura J. Harris, J.D. SPR22/2839 Page 2 December 23, 2022 municipality 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. Att’y 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. The University’s December 8th Response In its December 8, 2022 response, the University states that “as a process matter regarding a specific portion of the Request, it is overly broad so as to preclude even an initial search to see if any records may exist.” The University also cites Exemption (u) of the Public Records Law, and the attorney-client privilege for withholding responsive records. See G. L. c. 4, § 7(26)(u). Exemption (u) Exemption (u) permits the withholding of: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns G. L. c. 4, § 7(26)(u). 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 made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); 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.

Laura J. Harris, J.D. SPR22/2839 Page 3 December 23, 2022 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 not inspect the record but 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). Burden of Specificity Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Further, to deny access to 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, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In this case, the University’s response did not contain the specificity required in a denial of access to public records. The University did not identify the records in its possession that it intends to withhold from disclosure. Further, the University merely cites Exemption (u) without any explanation of the applicability of the exemption to the responsive records. Likewise, the University merely cites the attorney-client privilege without providing any description of the records as required under G. L. c. 66, § 10A(a). Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” In this case, although Mr. Bombard has requested a large volume of emails, he has provided specific descriptions for the categories of emails he is seeking, including a date range,

Laura J. Harris, J.D. SPR22/2839 Page 4 December 23, 2022 the names of senders and recipients, and a list of search terms. While his request may result in a large volume of responsive records, he has provided sufficient particularity required to identify the documents he is seeking. This office encourages Mr. Bombard and the University to continue to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Office is ordered to provide Mr. Bombard with a response to his request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Noah Bombard