Henry J. Brennan v. University of Massachusetts - President's Office (SPR 20220583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2022 SPR22/0583 Sean Regan Director University of Massachusetts – President’s Office One Beacon Street, 31st Floor Boston, MA 02108 Dear Director Regan: I have received the petition of Henry Brennan, Esq., of Howard & Howard, appealing the response of the University of Massachusetts (UMass/University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Attorney Brennan requested: [A] copy of the winning bid submitted in response to the RFP, as well as any additional documents submitted by the winning bidder. Furthermore, I would like a copy of any non-binding Letter of Intent submitted in response to the RFP, as set forth on page 3 of the RFP, as well as any definitive agreements entered into between the University and the winning bidder relating to the subject matter of the RFP. UMass provided a response on February 1, 2022, including responsive records in redacted form pursuant to Exemption (u) of the Public Records Law. G. L. c. 4, § 7(26)(u). Unsatisfied with UMass’ response, Attorney Brennan petitioned this office and this appeal, SPR22/0583, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Brennan’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Sean Regan SPR22/0583 Page 2 March 23, 2022 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). 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. UMass’ February 1st response In its February 1, 2022 response, UMass claims the redacted pricing information is exempt pursuant to Exemption (u) of the Public Records Law. Exemption (u) 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 private concerns G. L. c. 4, § 7(26)(u). UMass indicates, “T-Mobile has notified the University that it considers its pricing information to be proprietary and a trade secret. In Massachusetts, a trade secret ‘may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” J. T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass. 728, 736 (1970). Massachusetts courts recognize that pricing materials, like those redacted here, have independent economic value and can be protected as trade secrets. See Optos, Inc. v. Topcon Med. Sys., Inc., 777 F. Supp. 2d 217, 239 (D. Mass. 2011) (finding that lists, which included “the

Sean Regan SPR22/0583 Page 3 March 23, 2022 size of customers’ monthly fees,” could be trade secrets); Bruno Int’l Ltd. v. Vicor Corp., No. CV 14-10037-DPW, 2015 WL 5447652, at *12 (D. Mass. Sept. 16, 2015) (‘the specific. . . pricing information at issue here can constitute trade secrets where the information provides its holder with a competitive advantage’). The University’s produced records here contain redactions consistent with the statutory exemption cited above and relevant case law.” Based on UMass’ response, it is unclear how the redacted information can be withheld under Exemption (u). Particularly, it is not certain how the final pricing and payment information in a publicly obtained government contract, qualifies as a trade secret. See George W. Prescott Publ’g Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985) (holding that there is a strong public interest in monitoring public expenditures); see also Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979) (concluding that the public has an interest in knowing whether public employees are “carrying out their duties in an efficient and law-abiding manner.”). UMass must clarify this matter. Conclusion Accordingly, UMass is ordered to provide Attorney Brennan 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Henry Brennan, Esq. Francis Flaherty, Esq.