Orlando Perilla v. University of Massachusetts Building Authority (SPR 20251952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2025 SPR25/1952 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 Orlando Perilla, of Harbor Point Community Task Force, 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 March 7, 2025, Mr. Perilla requested “... copies of the following records ... related to University of Massachusetts Boston campus and/or UMBA’s Dorchester Bay City property located at the Bayside Expo Center site”: [1] All invoices from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C received Since Accordia Partners was chosen to be Dorchester Bay City’s Developer for UMBA, and records of payments made thereon. [2] All development agreements between UMBA’s development partner Accordia Partners, and their affiliates. [3] All Dorchester Bay City developer-related contracts and contractor agreement extensions. [4] All third-party market assessments as they relate to the development of commercial and retail at Dorchester Bay City, including projected rental rates. [5] All in-house or third-party rental market studies and or assessments as they relate to the development of rental housing at Dorchester Bay City, including projected rental rates. [6] All evidence of the regulatory procedures that were required to approve all development agreements and contracts. [7] All third-party reports relating to Dorchester Bay City’s impact on climate resiliency, berm protection, and wave propagation. [8] All third-party and internal reports relating to UMBA’s interest in developing 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. SPR25/1952 Page 2 July 21, 2025 the R2 parcel. [9] All Memoranda of Agreement, Memoranda of Understanding, and express written commitments to government agencies, local officials, and community groups. These commitments must include all organizations identified in the Massachusetts Environmental Policy Act (MEPA) filing including, but not limited to, UMBA, Department of Conservation & Recreation (DCR), Massachusetts Affordable Housing Alliance (MAHA), Columbia Savin Hill Civic Association, McCormack Civic Association, Boston Public Schools (BPS), Boston Parks and Recreation, Boys and Girls Club of Dorchester, the Martin Richard Foundation, and Boston Planning and Development Agency. [10] All invoices from McConnell Enterprises, Inc. and records of payments made thereon. [11] All invoices from VHB civil engineers and records of payments made thereon. [12] All invoices from Nitsch, Engineering, Inc. and records of payments made thereon. [13] All invoices from NV5 Global Inc. received over the past seven years and records of payments made thereon. [14] All invoices from BVH Integrated Services received and records of payments made thereon; and, [15] All invoices from Environmental Health & Engineering, Inc. received, and records of payments made thereon. Subsequently, on March 18, 2025, Mr. Perilla modified his request to seek records responsive to Items 1 through 9 only. Prior Appeals The requested records were the subject of prior appeals. See SPR25/0991 Determination of the Supervisor of Records (April 28, 2025) and SPR25/1349 Determination of the Supervisor of Records (June 4, 2025). In my June 4th determination, I learned that UMBA provided a further response on June 4, 2025. Unsatisfied with UMBA’s response, Mr. Perilla petitioned this office and this appeal, SPR25/1952, was opened as a result. Subsequently, On July 21, 2025, UMBA provided a further response. 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 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26).

David P. Mullen, Esq. SPR25/1952 Page 3 July 21, 2025 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 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. Current appeal In his appeal, Mr. Perilla asserts, “[i]t is incredulous for anyone to believe UMBA is ‘not in possession’ of their very own contract agreements for the development of 25-acres of public land. Likely the largest active project in UMBA’s portfolio. Similarly, it is impossible to imagine UMBA was not engaged in regulatory and/or status oversight meetings to review and monitor the six-year pre-development process.” UMBA June 4th response In its June 4, 2025 response, UMBA cites attorney-client privilege to redact the invoices requested. 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 (2017); see also Hanover Ins. Co. v. Rapa & 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. 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). In its June 4th response, UMBA stated,

David P. Mullen, Esq. SPR25/1952 Page 4 July 21, 2025 The request asked for “All invoices from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C received since Accordia Partners was chosen to be Dorchester Bay City’s Developer for UMBA, and records of payments made thereon.” As previously stated, with respect to attorney client privileged communications, the Massachusetts Supreme Court has affirmed that confidential communications between governmental entities and their legal counsel are protected under the normal rules of the attorney-client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). See also G.L. c. 4, s. 27(a). The invoices were (1) received from Mintz for work seeking legal advice from an attorney in their legal capacity; (2) such communication were made in confidence; and (3) the privilege to these communications have not been waived. See Suffolk at 450 n, 9. ... Pursuant to the documents requested, please be advised that the Authority has provided all documents in its possession in regards thereto. In its July 21st response, UMBA reiterated its attorney-client privilege claim and provided redacted invoices. Based on UMBA’s responses, I find that UMBA has met its burden to redact portions of the records under the attorney-client privilege. Further, I find that a privilege log was provided consistent with G. L. c. 66, § 10A(a). In addition, based on a telephone conversation between a Public Records Division attorney and a representative of UMBA, it is my understanding that UMBA confirmed that all responsive documents in its possession have been provided. Consequently, I find that UMBA has satisfied its burden in responding to this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Orlando Perilla