Brian McCarter v. Massachusetts Technology Collaborative (SPR 20253719)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 31, 2025 SPR25/3719 Jennifer M. Saubermann, Esq. General Counsel & Director of Government Affairs Massachusetts Technology Collaborative 2 Center Plaza, Suite 200 Boston, MA 02108 Dear Attorney Saubermann: I have received the petition of Brian McCarter appealing the response of the Massachusetts Technology Collaborative (Collaborative/MassTech/MTC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). ). On August 29, 2025, Mr. McCarter requested the following records: [1] Please provide the full grant applications for BEAD BOB round now that it’s no longer predecisional and been submitted to ntia/published on your website. [2] All records showing how grant amounts were calculated, including underlying data, formulas, or assumptions used, and any existing internal calculations used to determine funding. [3] It is difficult to determine from the posted materials whether the grant amounts cover only BSLs or also include CAIs. Please provide any already existing records that clarify this point. To avoid part 3 being overly broad, you may prioritize shorter, easier-to-release documents that directly clarify this issue. Previous Petition This request was the subject of a previous petition from the Collaborative. See SPR25/2719 Determination of the Supervisor of Records (September 16, 2025). In my September 16th determination, I found that it was unnecessary to opine on the Collaborative’s petition for an extension of time. Subsequently, the Collaborative responded on September 19 and September 23, 2025. Unsatisfied with the Collaborative’s responses, Mr. McCarter petitioned this office, and this appeal, SPR25/3719, was opened as a result. Subsequent to the opening of this appeal, the Collaborative provided a further response to Mr. McCarter and this 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

Jennifer Saubermann, Esq. SPR25/3719 Page 2 December 31, 2025 office on December 23, and December 29, 2025. In a letter to this office on December 29, 2025, Mr. McCarter objected to the Collaborative’s December 23rd response. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. McCarter’s status, and his reason for making the request, will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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 petition, Mr. McCarter argues the following: This appeal requests a review of the application of exemptions to BEAD application data, specifically regarding budget tables, coverage maps, community anchor institutions, and other proposal details. These redactions are not merely overbroad; they limit federal public transparency mandates, hinder public safety planning, and contradict MassTech’s own prior disclosures.

Jennifer Saubermann, Esq. SPR25/3719 Page 3 December 31, 2025 The Collaborative’s Responses In its September 19, 2025 response, the Collaborative provided numerous responsive records in redacted form, and cited G. L. c. 40J, § 12(h), and § 4C(a), as they operate through Exemption (a) of the Public Records Law, along with Exemptions (c) and (n) of the Public Records Law, for redacting and withholding responsive records. See G. L. c. 4, § 7(26)(a), (c), (n). In its September 23, 2025 responses, the Collaborative provided additional responsive records in redacted form, and elaborated on its claims for redacting the records under G. L. c. 40J, § 12(h). In its December 23, and December 29, 2025 responses, the Collaborative provided additional records, and further elaborated on its claims for redacting and withholding the responsive records. In its September 19th and December 23rd responses, the Collaborative also provides an index indicating which Exemptions apply to withhold or redact each of approximately 93 records, listed by file name. 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 responses, the Collaborative cites G. L. c. 40J, § 12(h), and § 4C(a), which provide in pertinent parts as follows:

Jennifer Saubermann, Esq. SPR25/3719 Page 4 December 31, 2025 Any documentary materials or data whatsoever made or received by any director or employee of the corporation, to the extent that such material or data consist of trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant for, or recipient of, any form of assistance which the corporation is empowered to render, or regarding the competitive position of such applicant or recipient in a particular field of endeavor, shall not be deemed public records of the agency and shall not be subject to the provisions of section ten of chapter sixty-six. Any discussion or consideration of such trade secrets or commercial or financial information, may be held by the board, or by any of the various technology boards, or by any subcommittee of said boards, in executive sessions closed to the public, notwithstanding the provisions of section eleven A 1/2 of chapter thirty A, provided, however, that the purpose of any such executive session shall be set forth in the official minutes of the corporation and no business which is not directly related to such purpose shall be transacted, nor shall any vote be taken during such executive session. G. L. c. 40J, § 12(h). The provisions of section twelve (h) of this chapter shall be deemed to apply to any and all proprietary information received by the corporation. G. L. c. 40J, § 4C(a). In its September 19th response, the Collaborative explains that the information withheld and redacted under G. L. c. 40J, § 12(h) and § 4C(a) consists of “financial information regarding the operation of a business by an applicant for any form of assistance which MassTech is empowered to render.” In its September 23rd response, the Collaborative further argues that “the columns breaking out costs by administration/miscellaneous, pre-construction, and construction costs is financial information regarding the operation of the applicant’s business and is therefore not a public record. The Project Financials Workbook submitted by applicants contains budget detail rising to the level of financial information regarding the operation of the applicant’s business that is not a public record.” In its December 23rd response, the Collaborative further argues the following: This provision [G. L. c. 40J, § 12(h)], which exists in a statute that provides for the establishment of the Massachusetts Centers of Excellence Corporation, is applied to all of MTC through subsection (a) of Section 4C, which provides expansively, “The provisions of section twelve (h) of this chapter shall be deemed to apply to any and all proprietary information received by the corporation.” The meaning of MTC’s statutory public records exemption is clear: “any and all proprietary information” received by MTC from an “applicant for, or recipient of”

Jennifer Saubermann, Esq. SPR25/3719 Page 5 December 31, 2025 assistance from MTC “shall not be deemed public records of the agency.” The documents withheld by MTC under this exemption all fit within the applicable definition of “proprietary information,” as well as the categories itemized in subsection (h) of Section 12 of Chapter 40J. They were received from “an applicant for” assistance, and either consist of: • “trade secrets;” • “commercial or financial information regarding the operation of any business conducted by an applicant;” or • “material or data” “regarding the competitive position of such applicant or recipient in a particular field of endeavor.” . . . In his appeal submission, the requestor presumes to characterize many of the documents that were withheld without any direct knowledge of what was in them, and without any regard to the statutory language of the exemption on which MTC relies. These characterizations should be ignored. MTC has reviewed the withheld documents and explained . . . what they contain and why they are exempt from disclosure. Neither statutory provision requires MTC to receive a request for confidential treatment as a condition of treating documents as exempt. . . . Unlike exemption (g) in Clause 26th of Section 7 of Chapter 4 of the General Laws, MTC’s statute does not require “a promise of confidentiality.” Nevertheless, MTC did receive requests from two applicants for confidential treatment. These requests prompted MTC to consider whether other submissions of similar materials would also be exempt under the same provisions. In his appeal, the requestor makes much of the warnings included in MTC’s solicitation document about the availability of application materials under public records law, asserting that an applicant’s failure to request confidential treatment constitutes a “procedural waiver.” But MTC has not “waived” those exemptions. MTC does not assert exemptions “on behalf of third parties,” as the requestor claims. Appeal, at 1. MTC asserts exemptions consistent with Massachusetts law. And Massachusetts law does not require “a promise of confidentiality.” The Collaborative is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, based on the information provided in the Collaborative’s responses, it is unclear how all of the information withheld and redacted under G. L. c. 40J, § 12(h) constitutes “trade secrets or commercial or financial information,” as required by the statute. See G. L. c. 40J, § 12(h); see also G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); Globe Newspaper Co. v. Police Comm’r,

Jennifer Saubermann, Esq. SPR25/3719 Page 6 December 31, 2025 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). The Collaborative must clarify this. Further, where the Collaborative has withheld some records in their entirety under G. L. c. 40J, § 12(h), the Collaborative must explain whether those records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (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). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). First Clause – Personnel While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798.

Jennifer Saubermann, Esq. SPR25/3719 Page 7 December 31, 2025 Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its September 19th and December 23rd responses, under Exemption (c), the Collaborative indicates that it has redacted “sensitive information or information that otherwise would constitute an unwarranted invasion of personal privacy.” In its December 29th response, the Collaborative further clarifies the following: The requestor . . . discussed MTC’s redactions of certain information from resumes under exemption (c). Simply put, MTC redacted home addresses, personal phone numbers and other personal information that could result in an unwarranted invasion of personal privacy. The requestor’s recitation of a business address for a proposed subcontractor does not mean that that anyone has waived their privacy right to keep their home address, home phone number or other personal information out of a record that is produced by a Commonwealth entity. While this office has previously determined that resumes may be disclosed, the Attorney General’s Office (AGO) has found that “. . . a resume submitted as part of an employment application falls within a core category of personnel information useful in making employment decisions, and is therefore absolutely exempt from disclosure under the first clause of Exemption (c).” See AGO’s May 7, 2020 letter regarding SPR19/2399 (Determination of the Supervisor of

Jennifer Saubermann, Esq. SPR25/3719 Page 8 December 31, 2025 Records (December 10, 2019). Further, this finding that personnel records are absolutely exempt from disclosure has recently been upheld by the courts. Colman M. Herman v. City of Boston, et. al., Suffolk Superior Court, Civil Action No. 2384CV2395 (June 20, 2024) (“personnel files . . . shall be considered exempt under exemption (c) . . .”); See Wakefield, 431 Mass. at 798. Consequently, the Collaborative has met its burden to redact the resumes under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its September 19th response, under Exemption (n), the Collaborative states that it redacted “schematic drawings relating to internal layout and structural elements of utilities the

Jennifer Saubermann, Esq. SPR25/3719 Page 9 December 31, 2025 disclosure of which is likely to jeopardize cyber security.” In its December 23rd response, under Exemption (n), the Collaborative argues the following: The documents that were withheld under subsection (n) consist of information containing the characteristics and location of existing and proposed network infrastructure. A person with bad intentions could make use of those documents to target high impact locations to cause disruption or take down whole segments of a broadband network. For instance, the files show points of interconnection (POI), where segments of broadband infrastructure meet – if a particular POI is targeted, it could take down every segment of the network attaching to that POI. Contrary to what the requestor says, these documents do not simply show what is visible to the naked eye. This information about the locations of POIs is not visible from the road. As a result of these considerations, General Counsel Saubermann, on behalf of MTC, exercised the agency’s reasonable judgment under exemption (n) to withhold all network design files under exemption (n). It is important to acknowledge that the question whether a requestor actually would make use of produced records for evil intentions is NOT relevant to the custodian’s consideration. As explained by the Court, the question is whether any “terrorist” would find these records “useful to maximize damage.” MTC concluded, after a careful review, that these records would be useful to an evil person seeking to cause damage. The requestor makes much of the fact that MTC produced a similar category of documents in a different BEAD-related grant solicitation, the “Gap Network” solicitation. Appeal at 2-3. 4-5, 9, 20, 23. But that is simply not relevant to the production of these documents. Mistaken or inadvertent production of different records pursuant to a different request does not require MTC to disclose the records it reviewed and withheld here. MTC exercised reasonable judgment in reviewing the nature of these documents in this round to prudently withhold them from disclosure. Based on the Collaborative’s response, it is uncertain how the responsive records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). In particular, the Collaborative did not provide factual heft to support the withholding and redaction of the requested records pursuant to Exemption (n). Specifically, the Collaborative has not sufficiently explained how disclosure of the records is likely to jeopardize cyber security. See PETA, at 289-90. The Collaborative must clarify these matters. Further, where the Collaborative has withheld some records in their entirety under Exemption (n), the Collaborative must explain whether those records can be redacted so that

Jennifer Saubermann, Esq. SPR25/3719 Page 10 December 31, 2025 segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Collaborative is ordered to provide Mr. McCarter 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. McCarter may further appeal the substantive nature of the Collaborative’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter Bob Ross, Esq.