Patrick Courtney v. University of Massachusetts - Lowell (SPR 20232259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2023 SPR23/2259 Jonathan Strunk Executive Director for Communications Strategy University of Massachusetts - Lowell 600 Suffolk Street Lowell, MA 01854 Dear Mr. Strunk: I have received the petition of Patrick Courtney appealing the response of the University of Massachusetts, Lowell (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2023, Mr. Courtney requested “... all documents pertaining to the University leasing University land for the purpose of a geothermal project.” Prior Appeal This request was the subject of a previous appeal. See SPR23/2171 Determination of the Supervisor of Records (September 22, 2023). In my September 22nd determination, it was my understanding that the University provided a subsequent response and closed the appeal. The University provided a response on September 12, 2023. Unsatisfied with the University’s response, Mr. Courtney petitioned this office and this appeal, SPR23/2259, 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); 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 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

Jonathan Strunk SPR23/2259 Page 2 October 4, 2023 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 September 12th response In its September 12, 2023 response, the University cited Exemption (d) of the Public Records Law to withhold the records. 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. Prot. 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 Department stated, “[o]nce [the University] has completed the negotiation process and the resultant agreement, at that time we would be able to produce your requested records under the Public Records Law. However, until then, the requested records are exempt from disclosure pursuant to Exemption (d)…” In an email sent to this office on September 29, 2023, the University stated, “[a]s a state agency, the university property in question regarding leases for a geothermal pilot project is subject to ongoing negotiations between National Grid and the Division of Capital Asset Management and Maintenance. National Grid and DCAMM are in negotiations to establish the fair market value for those parcels of land on [the University]’s campus that will serve as the location of the geothermal wells. The formal establishment of that land as a permanent easement will ultimately require legislation to approve. The legislation will be public for all to view and

Jonathan Strunk SPR23/2259 Page 3 October 4, 2023 [the University] will not hesitate to provide public records upon the completion of the process.” Based on the University’s responses, I find it has not met its burden of specificity to withhold the records in their entirety pursuant to Exemption (d). It is unclear which records are being withheld from disclosure under Exemption (d). 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); see also 950 C.M.R. 32.06(3)(c)(4). As such, the University must identify the records in its possession that it is withholding under Exemption (d). The University is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the University must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(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). Further, I find the University has not established how the records at issue are “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain how disclosure of the records would taint the ongoing deliberative process. The University must clarify these matters. Conclusion Accordingly, the University is ordered to provide Mr. Courtney 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 the response to this office at pre@sec.state.ma.us.

Jonathan Strunk SPR23/2259 Page 4 October 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick Courtney