Colman Herman v. University of Massachusetts - President's Office (SPR 20253752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2026 SPR25/3752 Francis Flaherty, Esq. Associate Counsel Office of the President University of Massachusetts One Beacon 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 (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 11, 2025, Mr. Herman requested, “... lists of donors this year to the University of Massachusetts campuses for all donations of $25,000 or more.” Prior Appeal This request was the subject of a prior appeal. See SPR25/3218 Determination of the Supervisor of Records (November 17, 2025). In my November 17th determination, I found that it was unclear whether UMass had provided a response. UMass responded on December 2, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/3752, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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. SPR25/3752 Page 2 January 7, 2026 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 asserts, “[t]he matter deals with UMass’ misguided efforts to hide the names of anonymous donors from public scrutiny. I will say it again. Government agencies, of which UMass is one, cannot accept anonymous money.” UMass’ December 2nd Response In its December 2, 2025 response, UMass cites Exemption (u) of the Public Records Law to withhold the requested records. 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 December 2, 2025 response, UMass asserts the following: The University campuses have provided the various donor lists that are attached hereto. With respect to the attachments, please note the following: (i) Amherst has no responsive records because it receives donations through its foundation, which is not a public agency pursuant to the Massachusetts Public Records Law, (ii) the University of Massachusetts Chan Medical School (“UMCMS”) produced two records, because one donor record sets forth so called oneoff donations (“donor list1”) and the other donor record sets forth donations made pursuant to “pledges” (“donor list2”). In addition, you will note that some donors are listed as anonymous. With respect

Francis Flaherty, Esq. SPR25/3752 Page 3 January 7, 2026 to protecting the privacy of donors who have made their donations conditioned upon a representation that their anonymity will be preserved, much has been written between and among the University, Mr. Herman and the Supervisor of Records (“SOR”). The University references and incorporates by such reference all such writings that we have shared in support of the position that G. L. c. 4, § 7 (26)(u) permits the withholding of the identity of an anonymous donor. Again, in short, such information is (i) proprietary information of the University as well as (ii) proprietary information of a private concern (i.e., the donor). Both the proprietary information of the University and the proprietary information of the private concern are each individually protected from public disclosure pursuant to the plain language of G. L. c. 4, § 7 (26)(u). ... As noted, 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. [Emphasis added.] The Instant Matter With the above fundamental underpinnings in place, we can now address the instant matter. Recall that G. L. c. 4, § 7 (26)(u) exempts from the statutory definition of public records: “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.” So, 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. So, does the name of a donor constitute proprietary information of either the University or its donors. Well, is it “any information of potential value that is not generally known to the public?” See Trade Secrets Throughout the World. Is it information belonging to a private party that “provides a competitive, economic, or strategic advantage, the disclosure of which could harm the owner or impair

Francis Flaherty, Esq. SPR25/3752 Page 4 January 7, 2026 future business or research relationships?” See Johnson & Madura’s Proprietary Confidential Information, Legal Intelligencer, March 2023. The answer to both questions obviously is yes. In earlier correspondence to your office, we have noted how it would be difficult to find a more proprietary piece of information for a private concern than its name – its identity - that it wishes to be kept private. Private concerns make anonymous donations for a number of reasons, including but not limited to, business pragmatism (if the donation source becomes public the donor could be hit with a slew of other donation and business requests), secular modesty or even a certain spiritual worldview. Whatever the motivating reason, the statutory exemption confers disclosure protection. Upon careful review of UMass’ response, I find that UMass has not met its burden of specificity to demonstrate that the responsive records can be withheld under Exemption (u). Particularly, it is not certain how a donor’s name is proprietary information pursuant to Exemption (u). UMass must clarify this matter. Conclusion Accordingly, UMass 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 UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman