Colman Herman v. University of Massachusetts - Boston (SPR 20250924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2025 SPR25/0924 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 Appeals This request was the subject of previous appeals. See SPR25/0317 Determination of the Supervisor of Records (February 11, 2025) and SPR25/0567 Determination of the Supervisor of Records (February 28, 2025). In my February 28th determination, I found that the University had not met its burden to withhold responsive records under Exemptions (c) and (u) of the Public Records Law, and that it was unclear what records the University possessed which were responsive to Mr. Herman’s request. The University provided a response on April 1, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/0924, 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

Matthew R. Fenlon SPR25/0924 Page 2 April 16, 2025 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 April 1st Response In its April 1, 2025 response, the University clarified that it possessed a list of six anonymous donors responsive to the request. The University provided additional support for its claims that the requested information was exempt from disclosure under Exemption (u) of the Public Records Law, but “… reserv[ed] all rights with respect to response clarification [regarding Exemption (c)].” Current Appeal In his April 4, 2025 petition to this office, Mr. Herman objected to the University’s withholding of the requested information. Specifically, Mr. Herman contended that the names of donors are not trade secrets, and that government entities cannot accept anonymous donations. 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 April 1, 2025 response, the University stated: The Massachusetts Public Records Law does not define the term trade secret or the term proprietary information. The term trade secret is defined elsewhere however in both Massachusetts and Federal law. Massachusetts adopted the Uniform Trade Secrets Act on October 1, 2018, codified as G. L. c. 93, § 42 to 42G in which, among other things, the term trade secret is defined. The term proprietary information is not defined anywhere in the Massachusetts statutes. Universally recognized intellectual property treatises do define the term

Matthew R. Fenlon SPR25/0924 Page 3 April 16, 2025 though, providing that proprietary information encompasses more than just trade secrets and can be “any information that is not generally known to the public.” Connecting the axiomatic dots here, it follows that a donor’s name that is being kept anonymous at her request is non-public information that is not generally known – thus falling within the term proprietary information and under the protection of the plain language of exemption (u). Based on the University’s April 1st response, I find that the University has not met its burden to show that the names of anonymous donors constitute proprietary information which may properly be withheld 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 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). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman