Ron Noble v. University of Massachusetts - Amherst (SPR 20251441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1441 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts Amherst 340F Whitemore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Ron Noble, of the National Council on Teacher Quality, appealing the response of the University of Massachusetts Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2025, Mr. Noble requested, “. . . a syllabus for . . . EDUC 615N – Children and their Literacies.” The University responded on May 12, 2025. Unsatisfied by the response, Mr. Noble petitioned this office and this appeal, SPR25/1441, 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 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. 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

Christine M. Wilda SPR25/1441 Page 2 June 3, 2025 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 May 12th Response In its May 12, 2025 response, the University cited Exemption (a) of the Public Records Law to withhold the requested records in their entirety. Current appeal In his appeal to this office, Mr. Noble stated: Our request was denied on the grounds that course syllabi are considered by UMASS Amherst as “Exempted Scholarly Work” owned by the faculty member pursuant to the University's Intellectual Property Policy. Yet, the policy does not include course syllabi in the list of texts considered “Exempted Scholarly Work,” presumably because course syllabi include content about a course not owned by the faculty, but determined by the university. Even if the syllabi are deemed “Exempted Scholarly Work,” we do not see how federal copyright law triggers an exemption in Massachusetts’s public records law. Federal copyright law does not bar the public from access to government documents. These syllabi were created by public employees using public funds. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Christine M. Wilda SPR25/1441 Page 3 June 3, 2025 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In response, the University cited 17 U.S.C. § 106(1), which provides in pertinent part: Subject to section 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: [1] to reproduce the copyrighted work in copies or phonorecords; [2] to prepare derivative works based upon the copyrighted work; [3] to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer or ownership, or by rental, lease, or lending. . . In its response, the University stated: Please be advised that the records responsive to your request have been withheld on the bases that they are exempt under the public records statute . . . because they relate to ‘Exempted Scholarly Work.’ Under the Public Records Law, syllabi are exempt from disclosure. . . because the materials are ‘Exempted Scholarly Work,’ owned by the faculty member pursuant to the University’s Intellectual Property Policy, and as such, the University cannot produce copies of the documents without violating the faculty member’s exclusive copyright in the document(s) are provided under 17 U.S.C. § 106(1). Based upon the University’s response, it is unclear how the requested records are restricted under 17 U.S.C. § 106(1), as it operates through Exemption (a). The statute, 17 U.S.C. § 106(1), referenced by the University regards the exclusive rights of copyright holders. The University is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G.L. c. 4, § 7(26)(a). Consequently, the University must state the statute that permits it to withhold the records from disclosure. Conclusion Accordingly, the University is ordered to provide Mr. Noble with a response to this 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 to this office at pre@sec.state.ma.us. Mr. Noble may appeal the substantive nature of the University’s response within ninety (90) days. See C.M.R. 32.08(1).

Christine M. Wilda SPR25/1441 Page 4 June 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Ron Noble