Ron Noble v. University of Massachusetts - Amherst (SPR 20252183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records August 8, 2025 SPR25/2183 Francis Flaherty, Esq. Associate Counsel University of Massachusetts Office of the General Counsel One Beacon Street, 31st Floor Boston, MA 02108 Dear Attorney Flaherty: 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 Appeals This request was the subject of previous appeals. See SPR25/1441 Determination of the Supervisor of Records (June 3, 2025) and SPR25/1737 Determination of the Supervisor of Records (July 2, 2025). In my July 2nd determination, I found that it was unclear based upon the University’s response, whether the University was able to permit inspection of the requested record. The University responded on July 24, 2025. Unsatisfied with the response, Mr. Noble petitioned this office and this appeal, SPR25/2183, 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. 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. SPR25/2183 Page 2 August 8, 2025 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 July 24th Response In its July 24, 2025 response, the University cited Exemption (a) of the Public Records Law in support of withholding the requested record. 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, 545-46 (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 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, UMass asserts the following: We clarify by noting that the authority you cite is not dispositive here. From a substantive matter, this “split the baby” attempted work around of the Copyright

Francis Flaherty, Esq. SPR25/2183 Page 3 August 8, 2025 Act by the court fails to consider an author’s exclusive right of public display under the Copyright Act. From a jurisdictional matter, this Missouri case is at odds with a Minnesota case that considers similar issues (the requester’s organization here is the plaintiff in both cases, so they should at least have constructive notice of the muddled, at odds holdings here). So, at best, the tension between the federal Copyright Act and various states public records law is unsettled. Within such context we can cite a court holding that completely resolves this appeal by affirming our previously stated position: once a document qualifies for copyright protection, it ceases to be a “public record” at all. Pictometry Int’l Corp. v. Freedom of Info. Comm’n., 59 A.3d 172, 187 (Conn. 2013). And, if not a public record, there is no need to address your request to clarify whether public inspection should occur. Further, we emphasize again that the University is positing its arguments not for its sole purpose but more significantly to protect the property rights and the creative fruits of its faculty. The requested records are not ours to give. See the University Intellectual Property Policy (T96-040), as well as our agreement with the Massachusetts Society of Professors which clearly provides that the exclusive ownership by our faculty of the requested records is a long-established policy of the University - and a bargained for right of our faculty. . . . To close, the above should resolve this appeal by clarifying that the requested records are preempted by federal law from state mandated public disclosure - a withholding recognized by the MPRL through G. L. c. 4, § 7 (26)(a). Of course, the ownership rights here also permit withholding under G. L. c. 4, § 7 (26)(u) and we reserve all rights to detail such position if necessary. We do not make such argument now because it is unnecessary given the above and further because of deference to our public higher education colleagues in the Commonwealth who do not have the benefit of G. L. c. 4, § 7 (26)(u) - and do not need it because G. L. c. 4, § 7 (26)(a) is sufficient to protect these types of faculty authored works. Upon review, the Connecticut Supreme Court case, Pictometry Int’l Corp. v. Freedom of Info. Comm’n., 59 A.3d 172, 187 (Conn. 2013) is not dispositive on this matter. 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, it remains uncertain whether the University is able to permit the inspection of the requested record.

Francis Flaherty, Esq. SPR25/2183 Page 4 August 8, 2025 Based on the University’s assertion that it is not claiming Exemption (u) at this time, I decline to opine on the applicability of this exemption to 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). Sincerely, Manza Arthur Supervisor of Records cc: Ron Noble