Colman Herman v. University of Massachusetts Medical School - Office of Management (SPR 20231692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2023 SPR23/1692 Laura J. Harris, Esq. Legal Associate Office of Management University of Massachusetts Chan Medical School 55 Lake Avenue North Worcester, MA 01655 Dear Attorney Harris: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Chan Medical School (University/UMass Chan) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 25, 2023, Mr. Herman requested “copies of any and all sponsored research agreements executed by the University of Massachusetts Medical School” and “copies of any and all licensing agreements executed by the University of Massachusetts Medical School.” On June 6, 2023, Mr. Herman narrowed his requests to “current sponsored research agreements with the federal government,” and “current licensing agreements.” On June 28, 2023, Mr. Herman further narrowed his request to “five each for the licensing agreements and the sponsored research agreements.” Previous Appeals This request was the subject of previous appeals. See SPR23/1325 Determination of the Supervisor of Records and SPR23/1328 Determination of the Supervisor of Records (June 30, 2023) and SPR23/1537 Determination of the Supervisor of Records (July 18, 2023). In my July 18th determination, I ordered the University to revise its June 8, 2023 fee estimate or provide further explanation as to how the fees are consistent with the Public Records Law. Following separate communication with Mr. Herman, the University responded on July 18, 2023, providing five licensing agreements, and citing Exemption (u) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(u). 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 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

Laura J. Harris, Esq. SPR23/1692 Page 2 August 7, 2023 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. 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. Current Appeal In his appeal petition, Mr. Herman first contends that the University’s response “is a distortion of the legislature’s intent with regard to exemption (u). In fact, it turns the exemption on its head.” Second, he contends that he “asked for ‘current agreements,’” but that the University “provided [him] with documents dated as far back as 2013, which do not appear to be currently in effect.” He also contends that his “records request also sought copies of five sponsored research agreements, which the [University] has yet to produce.” The University’s July 19th and August 3rd Responses Licensing Agreements In its July 19, 2023 response, the University cites Exemption (u) of the Public Records Law for redacting financial information contained in five licensing agreements. See G. L. c. 4, § 7(26)(u). 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). Under Exemption (u), in its July 19th response, the University argues the following:

Laura J. Harris, Esq. SPR23/1692 Page 3 August 7, 2023 The amount of the license (and related financial information) is proprietary to both the University of Massachusetts Chan Medical School and the entity entering into the license because disclosure of the price could be used by competitors who seek to obtain license agreements with UMass Chan in the future. In addition, financial information such as the entity’s ability to finance the license is propriety to both UMass Chan, again to prevent informing competitors, and the entity entering into the license. For these reasons, the financial information redacted is propriety information and exempt from disclosure. In fact, this is the precise reason exemption (u) was added to the list of exemptions five or so years ago - to ensure the ability of the University of Massachusetts to engage in licensing, intellectual property and material transactions without compromising the ability of the University to get the best possible value for the Commonwealth of Massachusetts. Additionally, in an email to Mr. Herman and this office on August 3, 2023, the University argues the following: The specific financial information redacted here addresses (i) a private entity’s financing information (that exhibits sufficient capital access bandwidth to perform pursuant to the Agreements) and (ii) the fee and subsequent royalty schedule to be paid in consideration for exclusive use of certain intellectual property owned by the University of Massachusetts Chan Medical School (“UMass Chan”). . . . Massachusetts case law makes clear that 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 financing or 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 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”). Based on the University’s response, it is unclear how the redacted information can be withheld under Exemption (u). Particularly, it is not certain how the final pricing 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

Laura J. Harris, Esq. SPR23/1692 Page 4 August 7, 2023 knowing whether public employees are “carrying out their duties in an efficient and law-abiding manner.”). The University must clarify this matter. The University’s June 28th Response Sponsored Research Agreements Additionally, in his appeal petition, Mr. Herman contends that his “records request also sought copies of five sponsored research agreements, which the school has yet to produce.” Please note that in an email to Mr. Herman and this office on June 28, 2023, the University provided Mr. Herman with “five (5) current Federal Sponsored Research Agreements.” If Mr. Herman is unsatisfied with the University’s June 28th response, he may appeal the substantive nature of the University’s June 28th response within ninety (90) days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the University is ordered to provide Mr. Herman 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 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman