Colman Herman v. University of Massachusetts - Medical School (SPR 20232269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2023 SPR23/2269 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); SPR23/1692 Determination of the Supervisor of Records (August 7, 2023); and SPR23/1934 Determination of the Supervisor of Records (September 5, 2023). In my September 5th determination, I ordered the University to explain how the information redacted in the responsive records constitutes a trade secret that can be withheld under Exemption (u) of the Public Records Law. See G. L. c. 4, § 7(26)(u). Subsequently, the University responded on September 19, 2023. Unsatisfied with the University’s response, Mr. Herman further 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 • pre@sec.state.ma.us

Laura J. Harris, Esq. SPR23/2269 Page 2 October 6, 2023 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. 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. Current Appeal In his appeal petition, Mr. Herman contends that “all of the school’s financial records are public records.” The University’s September 19th Response In its September 19, 2023 response, the University incorporates its previous responses, and reiterates its claims under 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 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

Laura J. Harris, Esq. SPR23/2269 Page 3 October 6, 2023 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. In it September 19th response, the University argues the following under Exemption (u), and the “Bruno Considerations” described above: [1.] the extent to which the information is known outside of the business: As noted several times by the University, the amount of the license (and related financial information) is proprietary information and or a trade secret to both the UMass Chan and the private entity entering into the license agreement. Disclosure of this information could harm UMass Chan because competitors who seek to obtain license agreements in the future may offer less consideration. No one other than the University or its private concern know the redacted information. In fact, only a few individuals at UMass Chan are aware of the specific financial details that were redacted. [2.] the extent to which it is known by employees and others involved in the business; Only a limited number of individuals in the BRIDGE Innovation and Business Development Office, and limited senior leaders are aware of the financial details that were redacted from the license agreements. [3.] the extent of measure taken by the employer to guard the secrecy of the information; The license agreements are treated as highly confidential. This is why, in part, the previous cost estimate provided by the University was high due to the fact that only very senior individuals in BRIDGE have access to the systems that contain the license agreements. [4.] the value of the information to the employer and to his competitors; The financial information redacted in the licensing agreements directly relates to University’s ability to earn a competitive licensing fee and the best value for University and the Commonwealth of Massachusetts. Disclosure of this financial information could harm the University because competitors who seek to obtain license agreements in the future may offer less consideration. Also, other private entities may be chilled from entering into license agreements with University in the future if their financial information (including financing ability) was to be public. For these reasons, the value of this financial information is critical to remain private. [5.] the amount of effort or money expended by the employer in developing

Laura J. Harris, Esq. SPR23/2269 Page 4 October 6, 2023 this information; and Under the temporary licensing agreements, UMass Chan is the licensor and is paid for the relevant intellectual property that it licenses to third parties. A great deal of time, resources and money are expended by the University to develop relationships and create licenses with private companies and research sponsors. Again, if required to release the financial information contained in the license agreements, the University 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. [6.] the ease or difficulty with which the information could be properly acquired or duplicated by others. As previously stated, the University believes this information is proprietary and a trade secret to both the University and the research sponsors or private companies. The financial information redacted is not publicly available and both the companies and the University treat this information as highly confidential. Therefore, this data cannot be properly acquired or duplicated by others. As a final general matter, basic tenets of statutory construction mandate that Exemption (u) be given some weight and applicability here. Exemption (u) was added to the Massachusetts Public Records Law statutory scheme. Additions to legislation occur to redress gaps and failings in the legal status quo. Exemption (u) confers rights in addition to the general exemptions initially provided to state entities through the Public Records Law. (emphasis in original) Based on the information provided in the University’s September 19th response, I find that the University has met its burden to redact the responsive records pursuant to Exemption (u) of the Public Records Law. See G. L. c. 4, § 7(26)(u). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman