‘Superior Cour - Hampden Dox fet Number DOGKET NUMBER Trial Court of Massachusetts CIVIL ACTION COVER SHEET 23CV230 _ |The Superior Court [COUNTY Hampden County Prana ‘Advance Local Media LLG aka MassLive.com Defendant Unversity of Massachasais AOORESS 7860 Main SL, Sprngfeld, WA, 01705 [AGORESS 1 Beacon Si, Floor 47, Boston, MA 02708 PlaintifAtormey: Jonathan M. Albano Defendant Atorney’ Francis Flahory ADDRESS! __Ona Fadaral St, Floor 16, Boston, MA G2170 CORES abo: ‘73860 eae. "TYPE OF ACTION AND TRACK DESIGNATION (ses instructions section on next page) CODE No, TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN MADE? Qther EquiyAction 0 eS NO -1"Otner" please describe: Ts Where a claim under GL SGA? Ts tharoa classaction under Mass. R Gv, 237 Les [xo Lves [No STATEMENT OF DAMAGES REQUIRED BY G.L. c.712, 638 [me otowing is aut, tized ana delat statement ofthe facts an ich the undersigned pant or plats counsel oes to deteine meney damages [Note 1o plant: for thi form, do not state double or treble damages: indicate singla damages ony.) ‘TORT CLAMS ls. Documented medical expenses to date 4, Total hospital expenses 2 a se expenses, 05/16/2023 Foal chiropractic expenses 4. Total physical therapy expenses 5. Total other expenses (describe below) Subtotal (1-5 0.00 |B. Documented lost wages and compensation to dato }c. Documented property damages to date }D. Reasonably anteipated future medical and hospital expenses E, Reasonably anticipated lost wages F. Otrer documented items of damages (describe below) TOTAL (AFT $0.00 . Bretly describe plaints injury, including the nature and extant af the injury: ‘CONTRACT CLAIMS tis action incuses a cain involving cotection ofa deotincured pursuant toa revolving rect agreement, Mass. R. Cv. P.8. (a), tema Detalles Deserpon of Each Gham Amount 7 Total Signature of Atom ai Represented Plain X Date: RELATED ACTIONS: Please provide the case number, case name, and counly of any related actions pending in the Superior Gaur. CERTIFICATION UNDER .J.6, RULE 118(5) nary ert thal Have coma with requirements of Rule 5 of Supreme sista Cour Rue 8: Untorm Rubs on Dap Resoalon,requitng hat lnform my cents about our-cemece dispute Yesolon servos and eacass wh them the edventages and daaavanlages he varlous methods ase Signature of Atiomey: X_isi Jonathan M, Abana: Date May 16,2028 7 ssconor:s1a%023 vawermass gowoourts DateTinne Prewea 05-18-2029 186:09Date ‘Superior Court - Hampden Docket Number ad 5/16/2023 1:27 PM CIVIL ACTION COVER SHEET INSTRUCTIONS — SELECT A CATEGORY THAT BEST DESCRIBES YOUR CASE* AC Actions involving the State Municipality” salty, MTA, st ‘Aton inte Commarea iy, MBA Property Acton rvohing Commonweal, Muncpaty, MBTA os. (A) ‘01 Eguty Acton invalng Gonerorweat Muncpaiy, META, ec Commonweal, Murapaty, MSTA tc. (A) ‘oN ConractiBusiness Cases ‘8 “ Ant Series, Labor ane Mateale ‘A03 Commercial Paper ‘ns Consumer Reveing Credt-wacs ‘ne Sal or Leate of RealEstate ‘Ald world {BAY Governance, Condit, tern ‘tare of Eten “ {BAS Liab of Stareholios, Doctors, tices, Partners eo. a 1881 Sharenlier Deratve wo (882 Secures Transactons a 18 Mergers, Consalidafons, Sales of ‘Areata, lesuance ofa Eau te. (A) 101 Ileal Prope “ 1802 Propet normaton or rede Serf w 861 Francalinstutons Funds a BH! Vohton sf tint or Tce Reguaton Laws w ‘99 thar ConraeBusiness Action - Spec (F) ‘natn of vain eens freak sgn aca pe rated 9 govermenial eniy UNLESS your cae 8 ase pesos under Aamnstve Cl Acions a {Choose his cas yp ANY party san ‘ype letedunder Adminaative Cl Acons (AA) tors. PreonerHabeos Corus cae (E97), EXAMPLE: CODE No. 03 TYPE OF ACTION (specify) Motor Vehicle Negligence-Personal Injury az Resch and Aopy 104 Reform’ Cancet instrument ag Centreuson or ngemneaton oa Minorty Shareholder’ Sut 109 ntarteenea in Contract! Relatonship ta Aecouring (tt Enocoment f Resicve Covenant tz Disouton fa Parneraip 18 Declaratory sudgmont. te Disalson of @ Corporation 190 Othe EatyAeton 6.2318 PA* Contact Acton invling an Inearceratad Party 8: Tors Aen voving an inceceratad Party 1 Real Property Acton invling an 1 Equty Action wating an PE Amine Aston ivang an £802 Motor Vehicle Nagle InuryProperty Dargo ‘ot one Negigenes «Personal InuyPropory Damage 1806 Malpractco- Modical ‘808 Wrongful Desth-Non-modical B10 Asbestos 821 Environmental 8: Frag, Busnes Tots, eo. [RP Summary Process (Real Proper) ‘S02 Summary Pocoss - Commercial! ~ e © ® © ® ™ ® e ay e © ™ © ® ~ ° (001 Lend Taking © (602 Zoning Appeal. GL. 408 © (63 Dispute Concoring Ti © oe Foreclosure of Monnene & (005 Concominumn ion & Charges * (080 Other Raa Property Acion " Mc Miscelaneous Chi Actions 18 Forign Dscovery Proceeding ~ 7 Prisoner Habeas Corue o ExzLatery Assignment GL-c.10,§28 08) 15 Abuse Praventon Peon, GL ©. 2094 08) E21 Proletion fom Harassment Gt, 25668) 02 Appesl fom Administve Agency, Greta ~ 0 Corirar Acton, GL c.249,§4 00 05 Gannon of Abia Awads 8) Mass aint Az, GL 8889 (A) Mase Anus AGL GLE 83,88 x) Apparent of @Recsiver o © 529,298 Sunray Process Appest Workers Comaneaton ule Surenrye Abpea! ‘rales At 12, § 19H pealtom Ds Cout ‘Commimont, GL. 123, § 9) orate, G0 265,§ 96 Forte, Ge. 840, § 47 204 Medal Wabracies = Treanal ony, ~ Gte-201 5.608 # 202 Appaal Bond Dena * ‘80 Sex Offender Review 12 SDP Gommement GL.6. 1238, §12 0%) ENS? Patton GL-e 133A, §90) 0) 19 Sox Otendr Rogity, GL 6, § 7M 0%) E27 Mor Ssokng Const GL-c112,§ 128%) ‘TRANSFER YOUR SELECTION TO THE FACE SHEET TRACK HAS A JURY CLAIM BEEN MADE? Rves [no STATEMENT OF DAMAGES REQUIRED BY G.L. c. 212, § 3A DUTY OF THE PLAINTIFF — On the face ofthe Civil Action Cover Sheet (or on attached adaitional sheets, if necessary), the plaintf shall state the facis on which the plaintiff relies to determine money damages. A copy of the completed Civil Action Cover Sheet, including the statement conceming damages, shall be served with the complaint. A clerk-magistrate shall not accept for filing a complaint, except as otherwise provided by law, unless itis accompanied by such a statement signed by the attorney or self-represented litigant. DUTY OF THE DEFENDANT — I the defendant believes that the statement of damages filed by the plaintif is inadequate, the defendant may flo with the defendant's answer a statement specitying the potential damages which may result ifthe plaintif prevails. ACIVIL ACTION COVER SHEET MUST BE FILED WITH EACH CONPLAINT. IF THIS COVER SHEET IS NOT FILLED OUT THOROUGHLY AND ACCURATELY, THE CASE MAY BE DISMISSED. ‘www.mmass.govlcourtsDate Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number COMMONWEALTH OF MASSACHUSETTS, HAMPDEN, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ADVANCE LOCAL MEDIA LLC, d/b/a MASSLIVE, Plaintiff, 23CV230 CIVIL ACTION NOS UNIVERSITY OF MASSACHUSETTS, 05/16/2023 Defendant. v. | COMPLAINT TO ENFORCE THE PUBLIC RECORDS LAW Plaintiff Advance Local Media LLC brings this action pursuant to G.L. c. 66, § 10A(c) to enforce the requirements of the Public Records Law to obtain (1) an order compelling defendant University of Massachusetts to comply with a November 23, 2022 public records request pursuant to G.L. c. 66, § 10A(c) and (d); and (2) an award of its attomeys” fees and costs pursuant to G.L. ©. 66, § LOA(A)(2) L 1, Plaintiff Advance Local Media LLC (hereafter “MassLive”) is a New York Corporation with a Massachusetts office in Springfield, Massachusetts. Plaintiff is the publisher of MassLive.com, an online newspaper. 2. Defendant University of Massachusetts (the “University”) is a unit of the Massachusetts Public Higher Education System within the Department of Higher Education, a ate agency organized under the authority of the Executive Office of Education. 3. The University is subject to the Public Records Law under G.L. c. 4, § 7, el. 26th.Date Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number II, JURISDICTION AND VENUE 4, This Court has jurisdiction over this action pursuant to G. L. ¢. 66, § 10A(d). 5. Venue is proper in Hampden County pursuant to G.L. ¢. 66, §§ 6A (a) and 10A (c), Ill. THE MASSACHUSETTS PUBLIC RECORDS LAW 6. “The public records law, G. L. ¢. 66, § 10 (a), requires the government to release upon request materials that fall under the definition of ‘[plublic records.”” Bos. Globe Media Partners, LLC v. Dep't of Pub. Health, 482. Mass, 427, 432 (2019), 7. GL. ¢.4,§ Tel. 26 defines “public records,” as, in relevant part, all “documentary materials or data, regardless of physical form or characteristics” that are “made or received by” any officer or employee of any agency of the Commonwealth. G.L. . 4, § 7 el. 26. 8. The Public Records Law requires records custodians to “at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record” and to do so “not later than 10 business days following the receipt of the request.” G.L. c. 66, § 10 (a). 9. The statute establishes a “presumption . .. that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law.” G. L. c. 66, § 10A(@)(1)(iv). 10. Because the statute presumes disclosure, the exemptions to the definition of “public records” enumerated in G.L. c. 4, § 7, cl. 26th (a)-(v) “must be strictly and narrowly construed.” Bos. Globe Media Partners, LLC. v. Dep't of Public Health, 482 Mass. 427, 432 (2019). Even when a portion of a document is exempt, any “segregable portion of a public record” still must be disclosed. G. L.c. 66, § 10(a), IV. MASSLIVE’S PUBLIC RECORDS REQUESTS 11. On November 23, 2022, Mr. Noah Bombard, an editor employed by MassLive,Date Had 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number made a public records request to the University (the “Request”). A true copy of the Request is attached hereto as Exhibit A. 12. The Request sought three categories of public records: (1) a copy of payments made by the University and/or the UMass Chan Medical School to the law firm Foley Hoag from the University of Massachusetts and/or UMass Chan Medical School from January 1, 2021, to November 17, 2022 and receipts of such payments; (2) a copy of a 1997 agreement on transfer of assets to the UMass Memorial Health Care, Inc. from the University of Massachusetts or University of Massachusetts Medical School (the “1997 Agreement”); and (3) electronic copies of emails within the date range of January 1, 2021, to November 23, 2022, to or from sixteen individuals. 1d. 13. Bya letter dated December 8, 2022, the University denied Mr. Bombard’s request in its entirety, refusing to produce any of the requested records or segregable portions thereof. A true copy of the University’s denial of the Request is attached hereto as Exhibit B. 14, The University asserted that MassLive’s request for records of payments made by the University to the Foley Hoag law firm sought privileged attoney-communications allegedly exempt from mandatory disclosure under the Public Records Law. Jd. at 1 15. The University further asserted that MassLive’s request for a copy of the 1997 Agreement sought “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” allegedly exempt from disclosure G.L. c. 4, §7, el. 26(u). Exhibit Bat 1 16. Finally, the University asserted that MassLive’s request for emails to and from sixteen individuals was “overly broad so as to preclude even an initial search to see if any recordsDate Had 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number may exist.” Id. The University further objected to producing any emails to or from its General Counsel on the grounds that all such communications were privileged attomey client communication, Id. 17. MassLive appealed the University’s denial of its public records request to the Supervisor of Records in the Public Records Division of the Office of the Secretary of the Commonwealth. See G.L. c. 66, § 10A(C). 18. On December 22, 2022, the Supervisor issued an order and decision on MassLive’s appeal (SPR 22/2838). A true copy of the Secretary's order is attached hereto as Exhibit C. 19. The Supervisor ruled in relevant part as follows: [T]he Office’s response did not contain the specificity required in a denial of access to public records. The Office did not identify the records in its possession that it intends to withhold from disclosure. Further, the Office merely cites Exemption (u) without any explanation of the applicability of the exemption to the responsive records. Likewise, the office merely cites the attorney-client privilege without providing any description of the records as required under G. L. ¢. 66, § 10A(a).... [Allthough 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, 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. Id. a03-4 20. The Supervisor ordered the University “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.” Id. at 4. 21. The University did not comply with the Supervisor's order to provide a response to MassL.ive’s public records request with the specificity required by law and continued to withhold all requested records, Accordingly, MassLive filed a second appeal to the Supervisor asking forDate Had 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number an order of compliance. 22. On January 13, 2023, the University asked the Supervisor to deny Massl second appeal on the grounds that the requested records were the subject of a pending arbitration between the University and UMass Memorial Health Care, Inc. A true copy of the University’s January 13, 2013, submission is attached hereto as Exhibit D. 23. In support of its position, the University cited 950 CMR 32.08(2)(b)(1), which provides that the Supervisor “may deny an appeal for, among other reasons if, in the opinion of the Supervisor: [J.] the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation[.]” 24, The University’s January 13 and February 6, 2023, submissions to the Supervisor included a link to the 2021 audited financial statement of UMass Memorial Health Care, Inc. providing the following description of the arbitration: On November 2, 2021, the University filed a demand with the American Arbitration Association for arbitration against the System. The arbitration demand challenges our calculation of certain participation payment amounts owed under the Definitive Agreement between the University and the System, The University secks a declaratory judgment regarding the methodology for calculation of participation payments and damages for supposedly miscalculated past payments. The University alleges it is owed up to $40,000 based on the past participation payment calculations it alleges were improperly done. The System believes that the University’s claim baseless and that the University is not owed any additional participation payments. Our annual calculation of the participation payment was disclosed to the University every year without challenge prior to this dispute, We have retained experienced counsel and will vigorously defend against the University’s arbitration claims. There can be no assurance as to the outcome of this matter. 25. On February 6, 2023, the University further clarified to the Supervisor that its position “was not predicated upon statutory exemptions but rather a specific [Supervisor of Records] regulation promulgated under its statutory authority [citing 950 CMR 32.08(2)(b)(1)].” A tie copy of the University’s February 6, 2023, submis ion to the Supervisor is attached heretoDate Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number as Exhibit E, 26. On March 1, 2023, the Supervisor declined to rule on MassLive's second apj Based on the information provided by the University about the pending arbitration proceeding, the Supervisor “decline{d] to opine on this matter at this time [citing 950 CMR 32.08(2)(b)(1)).” A true copy of the Supervisor's March 1, 2023, order is attached hereto as Exhibit F (SPR22/2838), 25. Despite acknowledging that its opposition to MassLive’s second appeal to the Supervisor “was not predicated upon statutory exemptions,” the University has continued to rely on the Supervisor declining to opine on the appeal as a basis for its continued refusal to comply with Mas Live's public records requests. v2 IVERSITY CANNO’ TS BURDEN OF PROVING WI SPECIFICITY THAT THE REQUESTED DOCUMENTS ARE EXEMPT FROM MANDATORY DISCLOSURE A. Records of Payments to Lawyers Are Not Privileged Attorney-Client Communications 27. The University’s assertion that records of payments to outside counsel are privileged attomney-client communications is meritless. 28. “The public records law reflects the Legislature’s judgment that it is in the public interest to compel access to records regarding the distribution or payment of public funds.” Bos. Globe Media Partners, LLC v. Ret. Bd. of Massachusetts Bay Transp. Auth, Ret. Fund, No. 1484CV01624, 2016 WL 915300, at *6 (Mass. Super. Mar. 9, 2016) (citing Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass. 812 (1978). 29, Asa matter of law, invoices and payment records conceming legal services do not constitute legal advice and are not privileged attorney-client communications. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 197-98 (2012). Records of these public expenditures by the University fall squarely within the definition of public records,Date Filed 6/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number B. The 1997 Agreement Is Not a Trade Secret or Proprietary Information under GL. c. 4, § 7, el. 26th (u} 30. ‘The University’s assertion that the 1997 Agreement is exempt from disclosure in its entirety under GL. c. 4, § 7, cl. 26th (u) (“Exemption (u)”) fails as a matter of law. 31. Exemption (u) exempts from the definition of public records 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 concernsf.]” GL. c. 4, § 7, clause 26(u) (emphasis added). 32. The legislature has defined the term “trade secret” to mean “anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement.” G.L. c. 266, § 30. 33. A contractual arrangement for the transfer of assets is neither a trade secret nor proprietary information, See Bechtel Infrastructure Corp. v. Massachusetts Tpk. Auth., No. 031601BLS, 2003 WL 21108412, at *3-4 (Mass. Super. Apr. 10, 2003) (collecting definitions of “trade secrets” under Massachusetts law and denying preliminary injunction against public records request because records did not fall under statutory exemption for trade secrets). 34. Even assuming that any portion of the 1997 Agreement actually contains either trade secrets or proprietary information, the University would be obligated to produce the Agreement redacted only of that information. See G.L. c. 66, § 10(a). C. The Requested Emails Are Not Exempt 35. The University’s refusal to search for and produce the requested emails violates the Public Records Law, 36. As the Supervisor ruled, MassLive’s request for emails to or from sixteenDate Had 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number individuals “provided specific descriptions for the categories of emails [they are] see including a date range, the names of senders and recipients, and a list of search terms. Cat3. 37. A records custodian that denies a public records request based on the alleged ‘magnitude of difficulty” of the request is required to “identify any records, categories of records, or portions of records that [it] intends to withhold, and provide the specific reasons for such withholding”; and “identify any public records, categories of records, or portions of records that [it] intends to produce” but required “additional time” to do so. G.L. c. 66, § 10(b); id. § 10(b)(iv) and (v). 38. The University’s December 8, 2022, and January 13, 2023, responses to MassLive’s public records request failed to comply with the requirements of the Public Records Law. 39. In addition to lacking the specificity required in a denial of access to public records, the response failed to identify the records being withheld and failed to explain how the attorney- client privilege applied. 40. The University’s cursory response that the request included emails to and from the General Counsel's does not meet its burden of proving with specificity that the emails are exempt from disclosure. As the Supreme Judicial Court has recognized, not every communication to and from an attomey is privileged. Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 460 (2007). D. 950. C.MLR. 32.08(2)(b) Is Not An Exemption to the Public Records Law 41. The University’s assertion that itis entitled to withhold documents pursuant to 950 CMR. 32.08(2)(b) and/or the Supervisor's refusal to opine on MassLive’s second appeal is meritless,Date Filed 6/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number 42. 950 C.MLR. 32.08(2)(b) provides: (b) 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; 2. the request is designed or intended to harass, intimidate, or a commission of a crime; 3. the public records request is made solely for a commercial purpose; or 4, the requester has failed to comply with the provisions of 950 CMR 32.08(2). Id, (emphasis added). 43. By its terms, 950 CMR 32.08(2) applies to only cases where the public records status of a document is the subject of a dispute in active litigation, administrative hearings or mediation, an assertion the University has not made here. 44, Even in situations where the regula ion does apply, it does not trump a records custodian’s statutory obligation to comply with the Public Records Law and promptly produce public records. 45. As the University admitted in its submission to the Supervisor, its opposition to MassLive’s second appeal “was not predicated upon statutory exemptions[.]” See Exhibit E. 46. The Supervisor did not deny MassLive’s second appeal but instead simply declined to opine on the matter at this time, 47. The University has failed to carry its burden of demonstrating that the requested records are exempt under the Public Records Law or under 950 CMR 32.08(2).Date Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number COUNTI (ORDER OF COMPLIANCE) 48, MassLive repeats and realleges paragraphs 1-47 above. 49. Under the Public Records Law, a “presumption shall exist that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of the record may be withheld in accordance with state or federal law.” G.L. c. 66, § L0A(@)(1)(iv). 50. The University has failed to carry its burden of demonstrating that any statutory or regulatory exemption applies to the following public records requested by MassLive: (1) a copy of payments made by the University and/or the UMass Chan Medical School to the law firm Foley Hoag from the University of Massachusetts and/or UMass Chan Medical School from January 1, 2021, to November 17, 2022 and receipts of such payments; (2) a copy of a 1997 agreement; and (3) electronic copies of emails within the date range of January 1, 2021, to November 23, 2022, to or from sixteen individuals, SI. Pursuant to G.L. ¢. 66, § LOA(A)(1)(i), MassLive is entitled to an order that the University forthwith produce the documents requested by MassLive. COUNT II (ATTORNEY’S FEES) 52. MassLive repeats and realleges paragraphs 1-51 above. 53. The Superior Court has the authority to award attorney fees and costs to a requestor who prevails in an enforcement action under the Public Records Law, id. § 10A(d)(2); order the agency to waive fees, id. § 10A(d)(3); and, in cases where the Court finds the agency did not act in good faith, award punitive damages. G.L. c. 66 § 10A(d)(2), (3), and (4). 54, ‘The Public Records Law further provides that “{t]here shall be a presumption in -10-Date Had 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number favor of an award of fees and costs unless the agency . . . establishes that: (i) the supervisor found that the agency or municipality did not violate this chapter; (ii) the agency or municipality reasonably relied upon a published opinion of an appellate court of the commonwealth based on substantially similar facts; (iii) the agency or municipality reasonably relied upon a published opinion by the attomey general based on substantially similar facts (iv) the request was designed or intended to harass or intimidate; or (v) the request was not in the public interest and made for a commercial purpose unrelated to disseminating information to the public about actual or alleged government activity. Id. § OAC (2)V-W). 55. The presumption in favor of an award of attorney’s fees applies in full force here. ‘The Supervisor made no finding that the University did not violate the Public Records Law. To the contrary, the Supervisor's December 22, 2022, decision found that the University had failed to comply with the Public Records Law, see Exhibit C, and the February 6, 2023, decision of the Supervisor declined to opine, and thus did not deny, MassLive’s second appeal. Exhibit F. 56. None of the other statutory exceptions to the presumptive right of MassLive to obtain an attorney's fee award apply to this case. 57. Upon entry of an order of compliance, MassLive is entitled to an award of its attomey’s fees. WHEREFORE, plaintiff respectfully prays that the Court: 1. Enter an order expediting these proceedings pursuant to G.L. e. 66, § L0A(A)(1)(ii); 2. Enter judgment in plaintiff's favor on Count I of the Complaint and order the University to forthwith produce the following documents requested by MassLive: (1) a copy of payments made by the University and/or the UMass Chan Medical School to the law firm Foley Date: Wednesday, November 23, 2022 at 3:27 PM To: [email protected] Ce: Chris Van Buskirk Subject: Public Records Request Greetings. (On behalf of MassLive, I'm submitting this request under the Massachusetts Public Records Law (M. G. L. Chapter 68, Section 10) for electronic copies of the records listed below. Please let me know if there are any charges for copies or personnel needed in order to provide the records or if we need to refine or clarify anything in our request to help with futfiling the request Per the Public Records Law, I'll look for a written response within 10 business days. If this is not possible or if more time is needed, please just let us know. The records we are seeking are outlined here: ‘= Copy of 1997 agreement on transfer of assets to UMMHC from the University of Massachusetts or University of Massachusetts Medical School, + Electronic copies of emails within the date range of Jan. 1, 2021 to Nov. 23, 2022 from or to any of the following people: Michael Collins, Marty Meehan, Rick Siegrist, Dr. Eric Dickson, Rob Manning, Mary Burns, David Brunelle, Norm Peters, James Julian, Gerry Leone, Doug Brown, Michael O'Brien, Stephen Karam, Richard Kelleher, Terence Flotte and Brendan Chisholm that include any of the following search terms: + ‘Participation payments" + "Walgreens" + "Shields" + ‘Definitive agreement” + “197° © ‘Arbitration” + “Litigation” + "Ropes & Gray" and "Ropes and Gray" * Copy of payments made to and receipts from law firm Foley Hoag from the University of Massachusetts and or UMass Chan Medical School from Jan. 1, 2021 to Nov. 17. 2022. Thank you, Noah R. Bombard Senior Managing EditorDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number Masslive (0: 413-746-1137 C: 978-886-8768 [email protected] @noahbombardExhibit BDate Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number From: Flaherty, Francis Date: Thursday, December 8, 2022 at 3:23 PM To: Noah Bombard Subject: Public Records Request Dear Noah Bombard: The University of Massachusetts (the "University") received your public records request sent via email to [email protected] on November 23, 2022 (the “Request’), in which you request various records with respect to: (i) the “transfer of assets to UMMHC from the University of Massachusetts or University of Massachusetts Medical School’, as well as (ii) billing documents from a law firm (the "Requested Records’). ‘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. As just one example, emails for sixteen individuals are sought over an almost two-year timeframe with proposed individual search terms, none of which are coupled and some of which are very generic. To demonstrate just one result of this overly broad framing, the Request would have the University search for emails to and from its General Counsel over an almost two-year period in which the generic term “litigation” is, used. This is too broad ‘As a substance matter regarding the overall Request, if any records were to exist under the Request, they would be exempt from disclosure pursuant to the Massachusetts Public Records Law. See G. L. c. 66, § 10(a), as well as the public records exemptions as set forth in G. L. c. 4, § 7(26) To cite just one of the statutory exemptions applicable here, G. L. c. 4, § 7(26)(u) exempts from public records disclosure: “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 concems” [emphasis added]. With respect to documents provided by a law firm, if any such records exist they would be exempt from disclosure pursuant to the established common law rules of attorney- client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50. To close, pursuant to 950 CMR 32.06(3)(c), we inform you of your right under G.L. c. 66, s. 10(A)(a) to appeal the disposition of your Request to the Supervisor of Public Records, Office of the Secretary of State [email protected], and the right to seek judicial review by commencing a civil action in the superior court under G.L. c. 66, s 10(A)(c).Date Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number Best regards, Francis Flaherty Public RecordsExhibit CDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2022 SPR22/2838 Francis Flaherty, Esq. Records Access Officer University of Massachusetts, President's Office ‘One Beacon Street, 31** Floor Boston, MA 02108 Dear Attomey Flaherty: Ihave 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. ‘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. ¢. 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 + [email protected]Date Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number Francis Flaherty, Esq. ‘SPR22/2838 Page 2 December 22, 2022 municipality of the Commonwealth, unless falling within a statutory exemy § 7(26). Itis 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. 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 ate paid, a records custodian must provide the responsive records. The Office’s December 8" Response In its December 8, 2022 response, the Office states that “as a process matter regarding a specific portion of the Request, itis overly broad so as to preclude even an initial search to see if any records may exist.” The Office also cites Exemption (u) of the Public Records Law, and the attorney-client privilege for withholding responsive records. See G. L. . 4, § 7(26)(u). Exemption (w) 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 G.L.c. 4, § 1(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 het 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 attomney-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Date Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number Francis Flaherty, Esq. ‘SPR22/2838 Page 3 December 22, 2022 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 ageney 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. Si 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. ¢. 66, § 10(by.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 Office’s response did not contain the specificity required in a denial of access to public records. The Office did not identify the records in its possession that it intends to withhold from disclosure. Further, the Office merely cites Exemption (u) without any. explanation of the applicability of the exemption to the responsive records. Likewise, the office 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. ¢. 66, § 10(a)(). In Chawla, the Superior court found that under the Public Records Law “[tJhe 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 “[rlequests 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, the names of senders and recipients, and a list of search terms. While his request may result in aDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number Francis Flaherty, Esq. SPR22/2838 Page 4 December 22, 2022 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 Office 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 mote 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 [email protected], Sincerely, Manza Arthur Supervisor of Records ee: Noah BombardExhibit DDate Filed 5/16/2023 1:27 PM ‘Superior Court - Hampden Docket Number From: Flaherty, Francis FFlahorty@umassp od ‘Subject: SPa22;2808; SPR22/2839 Date: January 13,2023 a 1:54 PM To: Gotitedsen, Jtrey (SEC) [email protected] (Ge: Noah Bombard [email protected], Harris, Laura (UMass Medical) Laura Haris @umassmed.edu Dear Attorney Gottfredsen: The following is submitted with respect to the above referenced appeals (the “Appeals") filed by Mr. Noah Bombard relative to records requests (the "Requests") previously made to the University. In his Requests, Mr. Bombard sought the following records: [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 Supervisor of Records, pursuant to its promulgated regulatory authority, denies appeals where "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation." 950 CMR 32.08(2)(b)(1). ‘Such is the case here. See UMMHC audited financials, page 51 "Arbitration Claim”: https://projects.propublica.org/nonprofits/display_audi/21733020211 Accordingly, we ask that your office deny the Appeals in accordance with your authority under 950 CMR 32.08(2)(b)(1) and given the instant circumstances. Best regards, Francis Flaherty Public RecordsExhibit EDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number From: Flaherty, Francis Date: Monday, February 6, 2023 at 6:30 PM To: Noah Bombard , Gottfredsen, Jeffrey (SEC) Ce: Harris, Laura (UMass Medical) , [email protected] , Chris Van Buskirk Subject: Re: SPR22/2838; SPR22/2839 Just for clarity, the denial request (attached) was not predicated upon statutory exemptions but rather a specific SOR regulation promulgated under its statutory authority. The denial request provides, in pertinent part: The Supervisor of Records, pursuant to its promulgated regulatory authority, denies appeals where "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation." 950 CMR 32.08(2)(b)(1). Such is the case here. See UMMHC audited financials, page 51 "Arbitration Claim" tt jects.propublica.ora/nonprofits/display_audit/21733020211 To close, would be remiss not to note that Mr. Bombard has been decorous throughout this process - this is just an instance where there is a regulation on point that addresses and resolves the instant matter. Best regards, Francis Flaherty From: Noah Bombard Sent: Monday, February 6, 2023 5:53 PM To: Flaherty, Francis ; Gottfredsen, Jeffrey (SEC) Cer Harris, Laura (UMass Medical) ; [email protected] ; Chris Van Buskirk ‘Subject: Re: SPR22/2838; SPR22/2839 Just checking in on an update on this appeal. it has been 15 business days since Attorney Flaherty requested a denial of this appeal. MassLive continues to believe there are records here which are not exempt from the public records law. ‘There may certainly be emails contained in the request which do not fall under any exemption. Also, it’sDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number unclear how receipts of payments to a law firm would fall under any exemption. This information was first requested on Aug. 26, 2022. The 1997 agreement also isa public record that has existed for 26 years. We understand this document is sizable and would be satisfied to be granted an in-person inspection of it. There also remains a question as to whether emails sent to UMass by an opposing law firm (even in the course of an active dispute) would be subject to exemption given that both parties are already fully privy to the information contained therein, Noah R. Bombard Senior Managing Editor Masstive 0:413-746-1137 C: 978-886-8768 [email protected] @noahbombardExhibit FDate Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manca Anhur Sipertsor of Records March 1, 2023 SPR23/0299 Francis Flaherty, Es Records Access Officer University of Massachusetts, President's Office ‘One Beacon Street, 31° Floor Boston, MA 02108 Dear Attorney Flaherty: Thave 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. 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 22™! 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 + [email protected]Date Filed 5/16/2023 1:27 PM ‘Superior Court = Hampden Docket Number Francis Flaherty, 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, itis 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