Herman, Colman v. University of Massachusetts - President's Office (SPR 20261032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2026 SPR26/1032 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 Appeals This request was the subject of prior appeals. See SPR25/3218 Determination of the Supervisor of Records (November 17, 2025) and SPR25/3752 Determination of the Supervisor of Records (January 7, 2026) and SPR26/0255 Determination of the Supervisor of Records (February 10, 2026). In my February 10th determination, I found that UMass did not meet its burden of specificity to demonstrate that the responsive records can be withheld under Exemption (u). Particularly, I found that despite the “Bruno Considerations” it remains uncertain how a donor’s name constitutes trade secrets pursuant to Exemption (u). UMass responded on March 18, 2026. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR26/1032, 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. SPR26/1032 Page 2 April 6, 2026 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. Herman asserts, “[i]f UMass wants to keep donor names secret, have the donors give their money to the UMass Foundation… UMass reveals the names of its donors all the time …” UMass’ March 18th Response In its March 18, 2026 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 March 18, 2026 response, UMass asserts the following: With respect to the above captioned matter, you requested that the University clarify how a donor’s name constitutes trade secrets pursuant to Exemption (u). We had earlier cited Bruno Int’l Ltd. v. Vicor Corp., No. CV 14-10037-DPW, 2015WL 5447652 and considered the “Bruno Factors” to the instant matter in support of Exemption (u)’s applicability here. By reference we incorporate those arguments and ask to you re-examine them in support of the fundamental proposition that confidential business relationships constitute a proprietary protectable value. The Massachusetts Legislature sought to protect this value when it enacted G. L. c. 4, § 7 (26)(u). G. L. c. 4, § 7 (26)(u) is a statutory provision customized solely for the University, a sui generis legislative

Francis Flaherty, Esq. SPR26/1032 Page 3 April 6, 2026 recognition in the MPRL of the natural tension between overall transparency and the need to protect certain University records - so that the University, a public entity, can function, and compete, in the competitive higher education space[.] In its prior January 22nd response, UMass stated the following: In order to apply the “Bruno Considerations” to the instant matter, consider the following: [1] the extent to which the information is known outside of the business: No one other than a small group of University personnel or its private concern (the donor) know the name of the donor who made the donation upon the condition of anonymity. (It should be noted that the donation amount for each and every anonymous donor has been disclosed to the requester.) [2] the extent to which it is known by employees and others involved in the business; Only a limited number of individuals in the specific campus development office and limited University senior leaders are aware of the donor name. [3] the extent of measure taken by the employer to guard the secrecy of the information; The donor identities are treated as highly confidential. Development personnel share this information to colleagues and senior leadership only when requested and only upon making clear that the donor required anonymity as a condition of making the gift and to treat the information as such. [4] the value of the information to the employer and to his competitors; Competition for the small pool of individuals capable of making donations to institutions of higher education “IHEs”) is spirited and intense especially in a climate of changing federal grants and revenues. Disclosure of the identity of an anonymous donor would have a double barreled adverse impact. First the University’s financial relationship would be forever harmed because the donor would be less apt to make any gift in the future to a partner who failed to comply with a key condition of the financial relationship. In addition, disclosure would provide IHE competitors with a key piece of University financial intelligence that they could now exploit – to the detriment of the University. [5] the amount of effort or money expended by the employer in developing this information; and A great deal of time, resources and money are expended by the University to develop and maintain donor relationships. Development offices expend great time, resources and money to source, identify, develop and maintain prospective donor relationships in the hopes of consummating a particular donation. Similar

Francis Flaherty, Esq. SPR26/1032 Page 4 April 6, 2026 resources are then expended to maintain the donor relationship in order to satisfy donor intent for that gift and to perhaps receive further donations. [6] the ease or difficulty with which the information could be properly acquired or duplicated by others. As previously stated, the University believes this information is proprietary and a trade secret to both the University and the individual donors. The financial information redacted is not publicly available and both the donors and the University treat this information as highly confidential. Therefore, this data cannot be properly acquired or duplicated by others. Upon careful review of UMass’ response, I find that UMass has not met its burden to demonstrate that the responsive records can be withheld under Exemption (u). Particularly, despite the “Bruno Factors” I find that UMass has not established that a donor’s name constitutes trade secrets pursuant to Exemption (u). 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