Colman Herman v. University of Massachusetts Building Authority (SPR 20240050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2024 SPR24/0050 David P. Mullen, Esq. Deputy Director/General Counsel Director of Capital Projects University of Massachusetts Building Authority UMass Amherst at Mt. Ida Campus 100 Carlson Avenue Newton, MA 02459 Dear Attorney Mullen: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Building Authority (UMBA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 30, 2023, Mr. Herman requested “[c]ommunications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/2226 Determination of the Supervisor of Records (September 25, 2022), SPR23/2478 Determination of the Supervisor of Records (November 2, 2023), SPR23/2666 Determination of the Supervisor of Records (November 20, 2023) and SPR23/2943 Determination of the Supervisor of Records (December 20, 2023). In my December 20th determination, it was my understanding that UMBA intends on providing a further response to Mr. Herman. UMBA responded on January 5, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/0050, was opened as a result. Subsequently, UMBA provided a supplemental response on January 22, 2024. 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

David P. Mullen, Esq. SPR24/0050 Page 2 January 23, 2024 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. UMBA’s January Responses In its January 5, 2024 response, UMBA stated “... please find an updated Attorney/Client Log. Also, please find an additional document responsive to Mr. Herman’s request.” In its January 22, 2024 response, UMBA advised that “...the communication in question was received relative to legal advice between a client and an attorney, the communication was made in confidence and the privilege has not been waived. Additionally, upon a search all responsive records have been provided.” UMBA also provided an updated privilege log. Current appeal In his January 6, 2024 appeal, Mr. Herman states, “[UMBA] fails to comply with Suffolk regarding his privilege log. In his December 5, 2023 response, [UMBA] continues to ignore this shortcoming. This needs to be remedied in terms of Note 9 of Suffolk.” In an email correspondence on January 22nd, Mr. Herman states, “[t]hree times before you told me that all the responsive records had been produced, but then after I appealed, you produced more records.” No Duty to Create Records Please be advised, under the Public Records Law UMBA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

David P. Mullen, Esq. SPR24/0050 Page 3 January 23, 2024 Conclusion Where UMBA has stated that all responsive records have been produced, and provided additional information regarding its attorney-client privilege claim, including an updated privilege log, I will now consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman