Colman Herman v. University of Massachusetts (SPR 20251769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2025 SPR25/1769 Francis Flaherty, Esq. Associate Counsel Office of the General Counsel University of Massachusetts One Beach Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Chan Medical School, University of Massachusetts Lowell and University of Massachusetts Boston (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 2, 2025, Mr. Herman requested a “... list of donors who gave $50,000 or more to the University of Massachusetts [campuses]during the period January 1, 2024 to December 31, 2024.” Prior Appeals – UMass Chan The requested records were the subject of prior appeals. See SPR25/1206 Determination of the Supervisor of Records (May 13, 2025) and SPR25/1369 Determination of the Supervisor of Records (May 29, 2025). Prior Appeal – UMass Lowell The requested records were the subject of a prior appeal. See SPR25/1204 Determination of the Supervisor of Records (May 15, 2025). Prior Appeals – UMass Boston The requested records were the subject of prior appeals. See SPR25/0924 Determination of the Supervisor of Records (April 16, 2025); SPR25/0567 Determination of the Supervisor of Records (February 28, 2025) and SPR25/0317 Determination of the Supervisor of Records (February 11, 2025). 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

Francis Flaherty, Esq. SPR25/1769 Page 2 July 7, 2025 In my prior determinations, I found that it was unclear how the responsive records can be withheld under Exemption (u). Particularly, I found that it is not certain how a donor’s name is proprietary information pursuant to Exemption (u). UMass provided Mr. Herman with a response dated June 17, 2025, for all three campuses. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/1769, 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. Att’y 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. Current appeal In his appeal, Mr. Herman states, “[g]overnment entities, of which the University of Massachusetts is clearly one, cannot accept anonymous money. . . .Donor names are not trade secrets. In fact, UMass actually reveals the names of its donors all the time.” UMass’ June 17th response In its June 17, 2025 response, UMass cited Exemption (u) of the Public Records Law to withhold anonymous donors to UMass Chan, UMass Lowell and UMass Boston in calendar year 2024.

Francis Flaherty, Esq. SPR25/1769 Page 3 July 7, 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 June 17, 2025 response, under Exemption (u), UMass asserts the following: ... the Requester sought lists of donors from each of the campuses in the University system - Dartmouth (“UMD”), Boston (“UMB”), Lowell (“UML”), Chan Medical School (UMCMS) and Amherst (“UMA”). All campuses complied with the request, although three campuses (UMB, UML, and UMCMS) had a small number of donors listed as “Anonymous”. UMB, UML, and UMCMS (collectively, the “Affected Campuses”) posit that G. L. c. 4, § 7 (26) (u) allows the protection of anonymous donor identities from disclosure. In an attempt at efficiency, given that each of the appeals share similar underlying facts and legal arguments, the University consolidates the appeals here. Such action is not undertaken in asua sponte manner, but rather at the request of your colleagues. . . . your office suggests that a prior Superior Court decision (White v. Murray, 178CV00912, attached) supports the disclosure of anonymous donors. Statutory Construction Consider now the specific and plain language of the exemption. It is disjunctive. If information of either the University or its private concern is either a trade secret or proprietary, the exemption applies. The fact that Exemption (u) is an “either or” rather than a “both and” statutory provision is no small thing. It provides the exemption an expansive scope. For example, if the requested information is proprietary information of a University private concern, the exemption applies. If the requested information is proprietary information of the University, the exemption applies. The same analysis holds true for a trade secret. Trade secrets are protected under both Massachusetts law (G.L. c. 93, § 42) and Federal law (18 USC §1836). In sum, a trade secret is any information that derives independent economic value, actual or potential, from not being generally known.

Francis Flaherty, Esq. SPR25/1769 Page 4 July 7, 2025 While the term “proprietary information” is not defined by any Massachusetts statute, recognized authorities in the realm of intellectual property law provide that proprietary information encompasses even more than just trade secrets - and is any information of potential value that is not generally known to the public. See, e.g., Trade Secrets Throughout the World § 4:4. The White v. Murray Superior Court Case While the SOR references the White v. Murray case on occasion with respect to anonymous donor appeals, the case is inapposite. Assuming arguendo the case has stare decisis precedential effect, the Superior Court - in a very thoughtful decision - addresses a municipality’s invocation of statutory exemption (c). The appeals here address the applicability of a different statutory exemption to a much different public agency. . . . [T]he University respectfully submits that for the reasons set forth above, G. L. c. 4, § 7 (26)(u) applies to the records being withheld. Upon review of UMass’ response, I find that UMass has not met its burden to show that a donor’s name constitutes proprietary information that can be withheld under Exemption (u) of the Public Records Law. 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 (10) 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman