Noah Bombard v. University of Massachusetts - President's Office (SPR 20230299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2023 SPR23/0299 Francis Flaherty, Esq. Records Access Officer University of Massachusetts, President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: I have received the petition of Noah Bombard, of MassLive, appealing the response of the University of Massachusetts President’s Office (Office) 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/2838 Determination of the Supervisor of Records (December 22, 2022). In my December 22nd determination, I ordered the Office to clarify its claims under Exemption (u) and the attorney-client privilege. Subsequently, the Office responded on January 13, 2023, indicating that the responsive records are currently the subject of arbitration. Unsatisfied with the Office’s response, Mr. Bombard appealed, and this case was opened as a result. 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

Francis Flaherty, Esq. SPR23/0299 Page 2 March 1, 2023 Pending Litigation, Administrative Hearings, Mediation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its January 13, 2023 response, the Office claims that the requested records are the subjects of a dispute in arbitration. The Office includes a link to a report from UMass Memorial Health Care, Inc., which includes the following description of the pending arbitration: On November 2, 2021, the University filed a demand with the American Arbitration Association for arbitration against [UMass Memorial Health Care, Inc.]. The arbitration demand challenges [UMass Memorial Health Care, Inc.’s] calculation of certain participation payment amounts owed under the Definitive Agreement between the University [of Massachusetts] and [UMass Memorial Health Care, Inc.]. The University seeks a declaratory judgment regarding the methodology for calculation of participation payments and damages for supposedly miscalculated past payments. In a telephone conversation with this office on February 21, 2023, an attorney for the Office confirmed that the arbitration described above remains ongoing. Based on the information provided above, it is my determination that the records at issue in this appeal are the subject of a dispute in an active administrative hearing. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Noah Bombard