Colman Herman v. University of Massachusetts - Medical School (SPR 20231934)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1934 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); SPR23/1537 Determination of the Supervisor of Records (July 18, 2023); and SPR23/1692 Determination of the Supervisor of Records (August 7, 2023). In my August 7th determination, I ordered the University to clarify its claims under Exemption (u) of the Public Records Law. See G. L. c. 4, § 7(26)(u). Subsequently, the University responded on August 21, 2023. Unsatisfied with the University’s response, Mr. Herman further 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. 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. SPR23/1934 Page 2 September 5, 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 contends that the records “involve[] state money and therefore the redacted information on the records is public.” Additionally, he contends that “UMass medical school still has failed to produce the five sponsored research agreements.” As noted in the previous August 7th determination, 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). The University’s August 21st Response In its August 21, 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). In its August 21st response, under Exemption (u), the University argues the following:

Laura J. Harris, Esq. SPR23/1934 Page 3 September 5, 2023 [T]he redacted information was not final pricing information in a publicly obtained government contract and it was not related to a public expenditure.... Under the temporary licensing agreements, UMass Chan is the licensor and is paid for the relevant intellectual property that it licenses to third parties. UMass Chan is not spending any public money under these licenses. UMass Chan is seeking to obtain the best value for its intellectual property. If UMass Chan is required to produce the financial information, it will be harmed because UMass Chan will not be able to competitively re-license these assets after the existing licensing agreements expire. The financial information redacted in the licensing agreements directly relates to UMass Chan’s ability to earn a competitive licensing fee and is exempt from disclosure as a trade secret and proprietary information. 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”). In its previous August 3, 2023 response, the University specified 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. In Bruno Int’l Ltd. v. Vicor Corp., No. CV 14-10037-DPW, 2015 WL 5447652, a trade secret is defined as follows: A trade secret is by definition only information that is secret or unknown to the trade... Among the relevant considerations in identifying a trade secret are: [1.] the extent to which the information is known outside of the business; [2.] the extent to which it is known by employees and others involved in the business; [3.] the extent of measure taken by the employer to guard the secrecy of the information; [4.] the value of the information to the employer and to his competitors; [5.] the amount of effort or money expended by the employer in developing this information; and [6.] the ease or difficulty with which the information could be properly acquired or duplicated by others. . . . Bruno, at 10.

Laura J. Harris, Esq. SPR23/1934 Page 4 September 5, 2023 Based on the above, I find the University must explain how the information redacted in the record constitutes a trade secret that can be withheld under Exemption (u). The University must clarify this matter. Conclusion Accordingly, the University is ordered to provide Mr. Herman 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, Manza Arthur Supervisor of Records cc: Colman Herman