McCarter, Brian v. Massachusetts Technology Collaborative (SPR 20261414)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2026 SPR26/1414 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 and Appeal This request was the subject of a previous petition from the Collaborative and an appeal. See SPR25/2719 Determination of the Supervisor of Records (September 16, 2025) and SPR26/3719 Determination of the Supervisor of Records (December 31, 2025). In my December 31st determination, I found that the Collaborative had met its burden to redact resumes under Exemption (c), but must clarify its claims under Exemptions (a) and (n) of the Public Records Law for withholding and redacting other records. See G. L. c. 4, § 7(26)(a), (c), (n). Subsequently, the Collaborative responded on January 15, 2026. Unsatisfied with the Collaborative’s responses, Mr. McCarter petitioned this office, and this appeal, SPR26/1414, was 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 M. Saubermann, Esq. SPR26/1414 Page 2 April 29, 2026 opened as a result. Subsequent to the opening of this appeal, the Collaborative provided a further response to Mr. McCarter and this office on April 28, 2026. In numerous emails and letters to this office, Mr. McCarter reiterated his objections to the Collaborative’s responses. 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, among other things, the following: MassTech invoked G.L. c. 4, §7(26)(n) to withhold or redact GIS route files, network design documents, and infrastructure data across multiple applicants. The exemption fails at every level of analysis. . . . MassTech invoked G.L. c. 40J, §12(h) — protecting “trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant for any form of assistance which [MassTech] is empowered to render” — to withhold or redact project financial workbooks, performance bonds, letters of credit, matching fund commitments, EINs, W-9 forms, UEI numbers, and resumes. The exemption fails across every category. The Collaborative’s January 15th and April 28th Responses In its January 15, 2026 response, the Collaborative provides numerous responsive records which it had previously withheld, and cites Exemptions (a) and (n) of the Public Records Law for redacting the records and withholding others. See G. L. c. 4, § 7(26)(a), (n). In its April 28, 2026 response, the Collaborative reiterates its claims under Exemptions (a) and (n).

Jennifer M. Saubermann, Esq. SPR26/1414 Page 3 April 29, 2026 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: 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.

Jennifer M. Saubermann, Esq. SPR26/1414 Page 4 April 29, 2026 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 January 15th response, under G. L. c. 40J, the Collaborative argues the following: It is MassTech’s position that the entirety of the Project Financial Workbook should be withheld. All information contained in the excel spreadsheet is financial information regarding the operation of a business conducted by an applicant. We have attached a blank workbook provided with this response (Attachment B). The information itemized in this workbook shows detailed financial information submitted by the applicants regarding administration and legal expenses; architectural, engineering, and other consulting fees; permitting costs; costs related to land/structures, make ready, and ROW appraisals, etc.; cost of site preparation work; construction costs (including all costs associated with the deployment of the proposed network); equipment costs (i.e. all costs associated with the purchase of network electronics and active equipment); and miscellaneous costs detailed by the applicant that do not otherwise fall within one of the above enumerated categories, it also includes projected cash flows over the course of the project. All of this information, whether specific line items or total amounts is considered financial information regarding the operation of an applicant’s business and is thus exempt from disclosure as per M.G.L. c. 40J sec. 12 (h) (“any documentary materials or data whatsoever … received by any … employee of the corporation, to the extent that such material or data consist of … financial information regarding the operation of any business conducted by an applicant … any form of assistance which the corporation is empowered to render… shall not be deemed public records of the agency.” ), as is applicable to MassTech through the operation of subsection (a) of Section 4C of Chapter 40J. The entirety of the document contains proprietary financial information from each applicant, as specified above, including business sensitive and proprietary information regarding detailed budget information, projected cash flows, and cost summaries. This is financial information that is not otherwise disclosed publicly, and release of this information could damage an applicant’s competitive position and provide a competitive advantage to other internet service providers (“ISPs”). In addition, the material constitutes commercial information because it is not readily ascertainable by competitors. Disclosure of this information would allow competitors to ascertain methodologies and utilize that information to create competing systems – thus providing competitors with information of an applicant’s know-how and market advantage. The specificity of the proposed

Jennifer M. Saubermann, Esq. SPR26/1414 Page 5 April 29, 2026 project financials are the product of an applicant’s experience and proprietary analysis. Public release of this information would enable competitors to emulate this analysis. For these reasons, we are withholding all applicant Project Financial Workbooks. In addition, we will continue to redact the following columns from the CAI List spreadsheets submitted by Archtop, Comcast, Omnipoint and Open Cape (four spreadsheets for each municipality): Budget Line Item: Administration and Miscellaneous; Budget Line Item: Pre- Construction; Budget Line Item: Construction. This information was derived from the Project Financials Workbook. This information represents costs per CAI for administration and miscellaneous costs; pre-construction costs; and construction costs, which are all financial information that relates to the competitive position of the applicant. Competitors would derive economic value from obtaining this information and release would harm the competitive position of the applicant. All other information that we are redacting pursuant to this exemption is explained in further detail in the redaction log [provided with the Collaborative’s response]. . . . Applicability of M.G.L. ch. 40J, sec. 12 (h), 4C (a) to network design information - commercial information regarding the competitive position of an applicant for any form of assistance which MassTech is empowered to render Notwithstanding the [Collaborative’s claims under Exemption (n)], information regarding the location of an applicant’s (provider’s) broadband network (infrastructure) should also be considered commercial information regarding the competitive position of that applicant that is exempt from disclosure pursuant to M.G.L. ch. 40J, sec. 12 (h), 4C (a). Releasing information about the design of grantfunded networks that have yet to be built could impact the financial viability of such networks by allowing a competitor to get a jump start and file make-ready applications before the applicant. The grant applicant must be awarded funds, execute a grant agreement and comply with extensive federal requirements. None of those requirements would apply to a privately funded network. A competitor could thus use information about the location of existing infrastructure to inform the design of a competing network that would overbuild on an applicant’s network and render the applicant’s network commercially unviable. Additional Information Produced While it seems unhelpful to provide a performance bond letter from a financial institution while redacting the institution’s name, the amount of the bond, and the terms of payment, I have redacted and will now produce those documents. ... I am

Jennifer M. Saubermann, Esq. SPR26/1414 Page 6 April 29, 2026 withholding the aforementioned information as it is commercial (who the applicant banks with) and financial information regarding the operation of an applicant’s business and is therefore exempt from disclosure pursuant to M.G.L. ch. 40J, sec. 12 (h), 4C (a). In addition, I am producing applicant’s W-9’s with the Employer Identification Number (EIN) redacted, as the EIN is commercial information regarding the operation of an applicant’s business and is therefore exempt from disclosure pursuant to M.G.L. ch. 40J, sec. 12 (h), 4C (a). Comcast has confirmed that the material redacted in their Compliance Approach document can be released, so I am providing an unredacted version of that document. SpaceX is the only satellite provider that applied, and has confirmed that there is no sensitive information in the “SpaceX_Network_Design.zip” GIS files, so we are providing that zip file. 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

Jennifer M. Saubermann, Esq. SPR26/1414 Page 7 April 29, 2026 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 January 15th response, under Exemption (n), the Collaborative argues the following: The file format for all “Network Design” files (unless otherwise noted) is in a Geographic Information System (“GIS”) file format. A GIS file is a specialized digital file format for storing geographic information, essentially combining location data (like coordinates) with descriptive data (like names and attributes) for a specific place on Earth, used to create maps and analyze spatial patterns. The programs used to view these files show the placement of broadband fiber routes within Project Service Areas (PSAs) and the connection of these routes to existing broadband networks – this creates schematic drawings (layered over maps) to display the data. As noted previously, 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 served from that POI. Although some aspects of this infrastructure--e.g., existing utility poles and aerial lines--may be visible to the naked eye from the street, the ownership of such facilities would not necessarily be apparent, nor would the relationship (connections) between the different cables and between the cables and the central office. A person with bad intentions would also benefit from the convenience of having all of those design elements bundled into a single data package. Broadband networks underpin emergency communications, including 911 call routing, hospital connectivity, public safety radio backhaul, utilities’ remote monitory, schools, and government services. The federal government designates the communications sector as critical infrastructure, and both security agencies and regulators treat detailed network information as sensitive because it can be used to identify and exploit vulnerabilities, disrupt essential services, and endanger public safety. The network diagrams submitted by applicants reveal critical network points that if targeted for physical or cyber-attack could cause outages that could impact 911 call routing, power grid communications or other critical communications.

Jennifer M. Saubermann, Esq. SPR26/1414 Page 8 April 29, 2026 For example, in 2020 an individual detonated an explosive device in downtown Nashville, Tennessee, close to a commercial AT&T networks facility, which caused not only consumer telephone and internet outages, but 911 outages as far as Alabama and Kentucky, some of which lasted over a week. See “FirstNet Authority Meets with Public Safety to Inform Review of Nashville Bombing,” February 2, 2021, available at [a specified link]. While that bomber’s motive may not have been to target the AT&T network facility, the effects of the incident show the potential disruption that could be caused by targeting communications infrastructure. In a Communications Sector-Specific Annex to the National Infrastructure Protection Plan, the Department of Homeland Security identified terrorism to physical infrastructure of communications systems as a risk. ... Recognizing the damage that a terrorist attack could do to the physical infrastructure of a communications system, a goal of the communications sector identified in the Annex is to “protect and enhance the overall physical and logical health of communications”, which “involves the identification of communications assets, the implementation of protection measures for those assets, the detection of threats and attacks against the assets, appropriate and effective response to attacks, and the recovery of damaged communications functionality.” ... Sharing the location of communications infrastructure, such as POIs and locations where broadband infrastructure ties into a central office for a region or municipality provides a target for terrorists that would want to inflict significant damage. ... In a study referenced by West Point’s Combating Terrorism Center, in 2020, 96% of terrorist attacks committed by conspiracy theory extremists were aimed at damaging telecommunications infrastructure in countries from North America to Europe and Australia. The article explains, “[t]he increased focus and attacks on critical infrastructure by far-right extremists has the potential to wreak extensive, multifaceted societal disruption and damage, impacting communications, the economy, mobility, and basic human necessities.”. ... Therefore the information contained in these GIS files is exactly the type of information a terrorist would find useful to maximize damage. Segregable information from Network Design files to be produced We can segregate the portion of the GIS files containing the location of broadband serviceable locations (“BSLs”) and community anchor institutions (“CAIs”) to be served with BEAD funding, and therefore we are providing this information contained in each application submission. All the remainder of the data layers contained in the GIS files, including existing or proposed infrastructure (e.g., hubs, POIs, fiber routes and other equipment locations) are all being withheld for the reasons already stated.

Jennifer M. Saubermann, Esq. SPR26/1414 Page 9 April 29, 2026 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (n) claims made by the Collaborative to redact and withhold responsive records, the Collaborative must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Collaborative’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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, the Collaborative is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter Bob Ross, Esq.