Greg C. Noschese v. University of Massachusetts - President's Office (SPR 20161045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 13, 2016 SPR16/1045 Brian W. Burke, Esq. University of Massachusetts - Amherst Office of the General Counsel 309 Whitmore Administration Building Amherst, MA 01003 Dear Attorney Burke: I have received the petition of Greg C. Noschese appealing the response of the University of Massachusetts-Amherst (University) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Noschese requested "copies of all proposals, RFP responses and/or contracts between the University" and a specific company or companies. In a response from the Office of the Chancellor dated October 19, 2016, Michelle Goncalves provided responsive records; however, certain information in the records were redacted "at the bidder's request to protect the bidder's asserted trade secrets" pursuant to Exemption (g) of the Public Records Law. Ms. Goncalves stated that the "University takes no position as to the applicability of [E]xemption (g) in this case." 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, § lO(c); 950 C.M.R. 32.08(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(c ) ; see also District 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. 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

Brian W. Burke, Esq. SPR16/1045 Page 2 December 13, 2016 Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7 (26)(g) As explained by an attorney on my staff in a discussion with you on November 16, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial informatjon, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4 ) Upon an assurance of confidentiality, (5) Information provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. I find the University failed to establish the six criteria to establish the applicability of Exemption (g) to the redacted portion of the responsive records. Order The University is hereby ordered, within ten (10) days, to review Mr. Noschese's request and provide a revised response that is prepared in compliance with the specificity requirements outlined in this order, the Public Records Law and its Regulations. The University must provide a copy of such response to this office. It is preferable to se d an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Greg Noschese