Ron Noble v. University of Massachusetts - Amherst (SPR 20251737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1737 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/1441 Determination of the Supervisor of Records (June 3, 2025). In my June 3rd determination, I found that it was unclear how 17 U.S.C. § 106(1) permitted the University to withhold responsive records in their entirety. The University responded on June 17, 2025. Unsatisfied with the University’s response, Mr. Noble petitioned this office and this appeal, SPR25/1737, 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 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 SPR25/1737 Page 2 July 2, 2025 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 June 17th Response In its June 17, 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: It appears the University is reasserting the use of this federal law [17 U.S.C. § 106(1)] as a basis of an exemption, but we continue to believe that this is an inappropriate basis for an exemption since the law doesn’t specifically or by necessary implication exempt course syllabi from disclosure… 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.” 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

Christine M. Wilda SPR25/1737 Page 3 July 2, 2025 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the University cited 17 U.S.C. § 106 through 122, 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. . . 17 U.S.C. § 106. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section for purpose such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— [1] the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; [2] the nature of the copyrighted work; [3] the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and [4] the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. In its response, the University stated: The Copyright Act gives an owner of the copyright the exclusive right to distribute copies of the copyrighted work to the public by sale or other transfer. See 17 U.S.C. § 106 through 122.

Christine M. Wilda SPR25/1737 Page 4 July 2, 2025 This exclusive right – conferred by federal statue – is the underpinning of intellectual property rights…The SOR states it cannot find “necessary implication” exemption disclosure. However, given the plain language of the federal statute, the requested records are not owned by the University. The requested records are the property of an individual. The implication is both obvious and necessary. …Syllabi clearly fall under the category of classroom presentation and instruction. The prompt and open dissemination of the results of research and creative work among scholars and, eventually, to the public at large is essential to the University’s mission of education and research. The commercial development and distribution of the results of research and creative work to benefit the inventor or creator and the economy is part of the University’s mission of public service. This Policy is intended to facilitate the commercial development of intellectual property arising at the University and to provide an incentive to university inventors and creators to participate in such development while acknowledging the University’s primary goal of the discovery and dissemination of knowledge. Perhaps that is why the Legislature enacted further exemption protections to its state university through G. L. c. 4, § 7 (26)(u)… Based upon the University’s response, it is unclear whether the University could disclose the requested record. The University is advised that the Public Records Law “… give[s] the public the right to inspect and, if necessary, to copy …” copyrighted material submitted to a public entity. Edgar H. Wood Assocs., Inc. v. Skene, 347 Mass. 351, 363 (1964). Please note, however, “[t]hat right does not extend to making copies which will impair the [copyright holder’s] common law copyright and property … or enable one to obtain free of charge the benefit of another’s work.” Id.; see also Nat’l Council for Tchrs. Quality, Inc. v. Curators of Univ. of Missouri, 446 S.W.3d 723, 728 (Mo. Ct. App. 2014) (holding that (“[o]ne could certainly disclose a record without either reproducing or distributing the same record … request for access to the syllabi is not protected from disclosure by the federal copyright statutes, which address only reproduction and copying”). Consequently, the University must clarify whether it is able to permit inspection of the requested record. Conclusion Accordingly, the University is ordered to provide Mr. Noble 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. Noble may appeal the substantive nature of the University’s response within ninety days. See 950 C.M.R. 32.08(1).

Christine M. Wilda SPR25/1737 Page 5 July 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Ron Noble