Alasdair Roberts v. University of Massachusetts - Amherst (SPR 20252823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2025 SPR25/2823 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 181 President’s Drive 340F Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Alasdair Roberts appealing the response of the University of Massachusetts, Amherst (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 1, 2025, Mr. Roberts requested “[e]mail correspondence between UMass Amherst School of Public Policy and NASPAA . . . for the period between January 1, 2025 and March 31, 2025: All email messages between [two specified email addresses] [and] All email messages between [two specified email addresses].” Prior Appeal This request was the subject of a prior appeal. See SPR25/2417 Determination of the Supervisor of Records (August 29, 2025). In my August 29th determination, I found that UMass had not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). Further UMass was advised, that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. On September 25, 2025, UMass provided a response. Unsatisfied with the response, Mr. Roberts petitioned this office and this appeal, SPR25/2823, 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 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 SPR25/2823 Page 2 October 7, 2025 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. 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. UMass’ September 25th response In its September 25, 2025 response, UMass stated, “(f)ive emails, all related to one correspondence, were found in the search for responsive records. In accordance with M.G.L. Ch. 7, § 26, the University is withholding those records which are exempt from public record under the Deliberative Process exemption M.G.L. Ch. 7, § 26(d).” UMass further cited Exemption (u) of the Public records Law to withhold the requested records. Current appeal In his September 25, 2025 appeal, Mr. Roberts states, “UMass Amherst continues to invoke exemptions indiscriminately. For example, header information on these email messages (correspondents, date and time, and subject header) is not covered by the exemptions invoked. There is also text within the messages that would not be covered by either the deliberative process or trade secrets exemption.” In a further email dated September 28, 2025, Mr. Roberts asserts, “[w]ith regard to the correspondence as a whole, there are other reasons why the trade secrets exemption does not apply. The total pattern of behavior by UMass Amherst since August 1 now demonstrates a lack of good faith in complying with the requirements of the law, and the underlying principle of timely access to records.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.

Christine M. Wilda SPR25/2823 Page 3 October 7, 2025 G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). 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 response, UMass states, Without waiving any arguments as to this point, while also recognizing the full breadth of the Massachusetts Public Records Law – we note that the five emails (the “Records”) referenced above are further protected by M.G.L. Ch. 7, § 26(u). Exemption (u) applies because the Records contain “. . . . other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns.” Given the proprietary nature of the Records here, and in an effort to cooperate with your office, the University notes that if your office invokes its in camera authority, we will provide the Records to your office – for your review and determination as to whether or not M.G.L. Ch. 7, § 26(u) applies. We further posit that the Records shall not be proprietary ad infinitum. When such proprietary designation ends, a request would result in the Records being provided. In camera inspection In order to facilitate a determination as to the applicability of UMass’ claims to withhold the requested records pursuant to Exemptions (d) and (u) of the Public Records Law, UMass must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your

Christine M. Wilda SPR25/2823 Page 4 October 7, 2025 custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, UMass is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Alasdair Roberts