Colman Herman v. University of Massachusetts - Boston (SPR 20241977)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/1977 DeWayne Lehman Director of Communications University of Massachusetts - Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Lehman: I have received the petition of Colman Herman appealing the response of the University of Massachusetts, Boston (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2024, Mr. Herman requested, “copies of any and all communications with the ‘philanthropic sources’ you cite…” regarding a response to a separate records request. Prior Appeal This request was the subject of a prior appeal. See SPR24/1834 Determination of the Supervisor of Records (July 9, 2024). In my July 9th determination, I found that Mr. Herman had not provided the University with sufficient particularity required for the University to identify the documents he is seeking. The University provided a response on July 8, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/1977, 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 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. 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

DeWayne Lehman SPR24/1977 Page 2 July 24, 2024 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. The University’s July 8th response In its July 8, 2024 response, the University cited Exemption (u) of the Public Records Law to withhold records. Current appeal In his appeal, Mr. Herman states, “the names of donors are not trade secrets… In addition, [the University] fails to identify what responsive records actually exist.” 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 this exemption, the University states the following: Conversations with potential donors and donors are withheld under Exemption (u)… Identifying, soliciting and cultivating prospective donors - in the hopes of an eventual relationship culminating in part by a donation (or donations) - is a significant and vital business initiative of any University. Donors (and donations) are a finite resource. And, as with finite resources in any industry, the competition for such is intense. Releasing communications to and from donors would be to reveal the University’s business approach while seeking the vital lifeblood of donations. This business approach is the intrinsic and proprietary underpinning of a specific

DeWayne Lehman SPR24/1977 Page 3 July 24, 2024 in-process University business initiative. To reveal it could greatly disrupt or impair donation efforts and no doubt put the University at a competitive business disadvantage in the world of higher education, especially vis a vis its private counterparts. Based on the University’s response, it is unclear how the withheld information is exempt under Exemption (u). Particularly, it is not certain how a prospective donor’s name is proprietary information pursuant to Exemption (u). 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.”). The University must clarify this matter. Additionally, it is unclear what type of records the University possesses that it withheld from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the University must identify the records it has in its possession that it is withholding under Exemption (u). 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman