Colman Herman v. University of Massachusetts - Boston (SPR 20242588)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2588 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/UMB) 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 Appeals This request was the subject of prior appeals. See SPR24/1834 Determination of the Supervisor of Records (July 9, 2024), SPR24/1977 Determination of the Supervisor of Records (July 24, 2024), and SPR24/2252 Determination of the Supervisor of Records (August 22, 2024). In my August 22nd determination, I found that it remained uncertain how the withheld email communications were exempt under Exemption (u). Specifically, I ordered the University to clarify how the communciations to and from donors, in their entirety, constituted proprietary information pursuant to Exemption (u). The University provided a response on September 13, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/2588, 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). 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 SPR24/2588 Page 2 September 30, 2024 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. The University’s September 13th response In its September 13, 2024 response, the University further explained its reasoning to withhold records under Exemption (u) of the Public Records Law. Current appeal In his appeal, Mr. Herman states, “[t]he responsive records that I am seeking here involve organizations and/or individuals who paid for UMass Boston Chancellor . . . and others to go on a trip to Italy. Massachusetts taxpayers are entitled to know who they are so that they can monitor whether these donors are seeking to influence some matter. Accordingly, please order [the University] to produce the responsive records.” 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 advises the following: By way of clarification, the two emails (the entire universe of responsive documents to the request here) do not contain non-exempt segregable portions that may be produced without contravening the plain language and intent of G. L. c. 4, § 7(26)(u). . . . The Bruno Considerations all apply here. The means by which any organization identifies, solicits and cultivates prospective donors – in the hopes of an eventual relationship culminating in part by a donation (or donations) – is idiosyncratic,

DeWayne Lehman SPR24/2588 Page 3 September 30, 2024 unique and non-public information that is zealously protected by private and public institutions alike. Consider the Bruno Considerations to the matter here: [1.] the extent to which the information is known outside of the business; No entity outside of the University or the respective donor knows the specific “pitch” appeal used by the University to the donors here in order to motivate the act of generating a donation. [2.] the extent to which it is known by employees and others involved in the business; Crafting donor appeals is a specialized undertaking reserved for few in the University and is considered a non-delegable duty. [3.] the extent of measure taken by the employer to guard the secrecy of the information; This very SOR appeal exercise addresses and answers this criterion. [4.] the value of the information to the employer and to his competitors; Extremely valuable. Internally, donations are a key revenue source that helps vis a vis university budgeting and supporting university-driven efforts. Externally, a competitor would greatly value the approach and language that could motivate a donor to make a donation. [5.] the amount of effort or money expended by the employer in developing this information; The amount of resources used to identify and maintain donor relations by any institution of higher education – private or public – is universally recognized. [6.] the ease or difficulty with which the information could be properly acquired or duplicated by others. Absent inadvertent or mandated disclosure, only omniscience would enable others to know how to craft an appeal to a specific donor that incorporates both the specific and unique needs of the University and its “pitch” that contextualizes the University’s needs in a way that motivates a donor and yields a donation. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (u) claim made by the University to withhold the records, the University must provide this office with un-

DeWayne Lehman SPR24/2588 Page 4 September 30, 2024 redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the University’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Conclusion Accordingly, the University is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman