Ron Noble v. University of Massachusetts - Amherst (SPR 20253575)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records December 26, 2025 SPR25/3575 Francis Flaherty, Esq. Associate Counsel University of Massachusetts, Amherst 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/UMass) 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) and SPR25/2183 Determination of the Supervisor of Records (August 8, 2025. In my August 8th determination, I found that it was uncertain whether the University is able to permit the inspection of the requested record. The University responded on November 26, 2025. Unsatisfied with the response, Mr. Noble petitioned this office and this appeal, SPR25/3575, 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). 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. SPR25/3575 Page 2 December 26, 2025 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. Current Appeal In his appeal, Mr. Noble asserts, “UMASS Amherst has provided no evidence that Exemption (u) was intended to cover course syllabi and has failed to articulate the specific elements of a course syllabus that contain proprietary information. Accordingly, we respectfully request the Supervisor of Records order UMASS Amherst to produce the requested public records without further delay.” The University’s November 26th Response In its November 26, 2025 response, the University cited Exemption (u) of the Public Records Law in support of withholding the requested record. In its response, the University asserts the following: ... the term proprietary information is not defined anywhere by Massachusetts statute. As a practical matter, the term proprietary information is known, as a universally recognized matter by those in the intellectual property space, as an expansive term that encompasses more than just trade secrets. In fact, one of the legal academic treatises on intellectual property in the world defines proprietary information as “any information of potential value that is not generally known to the public.” See Trade Secrets Throughout the World § 4:4. 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. . . . Exemption (u) protects, inter alia, both proprietary information records of the University as well as proprietary information records of private concerns who provide records to the University. This protection is “either or” as well as “both and.” If the record is proprietary information of the University, it is protected. If the record is proprietary information of a private concern providing the record, it is protected. If the record is proprietary information of both the University and the private concern so providing, it is protected.

Francis Flaherty, Esq. SPR25/3575 Page 3 December 26, 2025 In our previous submittals to the SOR, when positing the applicability of G. L. c. 4, § 7 (26)(a) to the records request, we cited both (i) a specific University Board of Trustee Policy (University Intellectual Property Policy, T96-040) that establishes that certain scholarly works are owned by the faculty author of such work, as well as (ii) the University’s agreement with the Massachusetts Society of Professors, which clearly provides that syllabi are the exclusive ownership of University faculty – an agreement set forth and memorialized in a duly executed and bargained for contract: https://umassmsp.org/contract/. The ownership distinction for the record being requested here could not be more clear. It is owned by the professor and thus is protected by G. L. c. 4, § 7 (26)(u), provided that the record constitutes her proprietary information. To close, the Legislature in its wisdom saw that the University, while a public entity, needed customized protection of certain of its records given the unique public service it is entrusted with and empowered to provide. As a result, it enacted G. L. c. 4, § 7 (26)(u). Pursuant to this provision the requested record is exempt from disclosure. Propriety information as defined in 50 U.S.C. 1708(d)(7) is as follows: The term “proprietary information” means competitive bid preparations, negotiating strategies, executive emails, internal financial data, strategic business plans, technical designs, manufacturing processes, source code, data derived from research and development investments, and other commercially valuable information that a person has developed or obtained if— (A) the person has taken reasonable measures to keep the information confidential; and (B) the information is not generally known or readily ascertainable through proper means by the public. 50 U.S.C. § 1708(d)(7). Based on the University’s response, in conjunction with the federal definition of propriety information described above, it is unclear how the responsive records constitute proprietary information that can be withheld under Exemption (u). Particularly, it is not certain what reasonable measures the University has taken to ensure the requested syllabus is kept confidential. Additionally, where copies of the syllabus are provided to students, it is not certain how the syllabus is not generally known nor readily ascertainable through proper means by the public. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The University must clarify these matters.

Francis Flaherty, Esq. SPR25/3575 Page 4 December 26, 2025 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