Colman Herman v. University of Massachusetts - Boston (SPR 20250567)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0567 Matthew R. Fenlon Assistant Chancellor for Government Relations University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Colman Herman appealing the response of the University of Massachusetts – Boston (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 10, 2025, Mr. Herman requested “… copies of records that identify the anonymous donors …” who donated $50,000 or more to the University from January 1, 2022 to the present. Previous Appeal This request was the subject of a previous appeal. See SPR25/0317 Determination of the Supervisor of Records (February 11, 2025). In my February 11th determination, I ordered the University to provide a response to Mr. Herman. The University provided a response on February 26, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/0567, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Matthew R. Fenlon SPR25/0567 Page 2 February 28, 2025 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 February 26th Response In its February 26, 2025 response, the University cited Exemptions (c) and (u) of the Public Records Law to justify the withholding of responsive records. The University also cited G. L. c. 15A § 37(f), but did not claim that the statute exempted the responsive records from disclosure. Rather, the University cited the statute to illustrate that “… the Legislature recognized that there are some entities who - for any number of possible reasons including privacy - might not donate funds if their identity would be made known.” Current Appeal In his February 27, 2025 petition to this office, Mr. Herman requested that the University be ordered to release the responsive records. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Matthew R. Fenlon SPR25/0567 Page 3 February 28, 2025 When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its February 26, 2025 response, the University stated: Of the approximately one hundred and twenty-eight (128) listed donors on the Donor List, six (6) donors are designated anonymous at the respective request of each of these donors. (Note that four of these donors are foundations, one is a trust and one is designated as friend) … Within the context of a private entity’s privacy interests - its legal rights to privacy - a donor’s identity is of a highly personal nature. In addition to the reasons cited above for privacy, from a pure business standpoint identification to the public of a possible source of fund donations could result in myriad intrusive and unwanted solicitations of the donor. Protecting identity not only protects an entity’s privacy rights - it also further serves the public interest. Consider that while all higher education institutions rely on donations to support operations, public universities are especially in need of this support. The quality and quantity of the University’s vast, deep and diverse education programs could not exist without the generosity of donors. Releasing the identity of donors who wish to be anonymous could greatly disrupt or impair donation efforts. This result not only would place the University at a disadvantage vis a vis its peer (private) institutions but it would harm the public - because the citizens of Massachusetts would suffer from the loss of private donation support to its state University. Based on the University’s response, it is unclear how an entity like a not-for-profit foundation or trust is a “specifically named individual” with the kind of privacy interest contemplated by Exemption (c) of the Public Records Law. The University must clarify this matter. Further, it is not clear how the names of the University’s donors constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. With regard to the balancing test described above, the University has not demonstrated that the privacy interest at issue outweighs the public interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. The University must clarify these matters.

Matthew R. Fenlon SPR25/0567 Page 4 February 28, 2025 Exemption (u) Exemption (u) applies to: 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 February 26, 2025 response, the University stated: It would be difficult to find a more proprietary piece of information for a private concern than its own name – its identity. This appeal seeks to send out into the world such profoundly proprietary information that the private concern has made clear it does not want shared. Based on the University’s response, it is unclear how the requested information can be withheld under Exemption (u). Particularly, it is not certain how a donor’s name is proprietary information pursuant to Exemption (u). Additionally, it is unclear from the University’s response what records it possesses which are responsive to Mr. Herman’s request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the University must identify the records in its possession that it is withholding under Exemptions (c) and (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 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. Mr. Herman may appeal the substantive nature of the University’s response within ninety days. See 950 C.M.R. 32.08(1).

Matthew R. Fenlon SPR25/0567 Page 5 February 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman