Shaevel, Esq., William v. Holyoke Community College (SPR 20150430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 22, 2015 SPRlS/430 Ms. Clara M. Elliott Dean of Human Resources Holyoke Community College 303 Homestead Avenue Holyoke, MA 01040 Dear Ms. Elliott: I have received the petition of William H. Shaevel, Esq. of Shaevel & Krems, LLP appealing the response of Holyoke Community College (College) to a request by his client, Joseph Rizzo, the Grievance Coordinator for the Massachusetts Community College Council (MCCC) for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on October 22, 2014, Mr. Rizzo requested a copy of: • All memoranda, letters and emails sent to or received between January 1, 2011 and September 24, 2014 by or between any non-unit administrators including, but not limited to, College Presidents, Vice Presidents, Dean, Assistant Deans, and Human Resources Directors that concern or reference any of the following: the Affordable Care Act, the Patient Protection and Affordable Care Act, and limitations or a cap on part time and/or Division of Continuing Education and/or adjunct faculty teaching assignments. October 22, 2014 written estimate While Mr. Shaevel did not appeal the College's October 22, 2014 written estimate in the amount of $216.00; this office finds that the College did not thoroughly explain the hourly rate assessed and whether the hours stated were for only a search for the records, or also included segregation (redaction) of exempt material within the content of the records. The College assessed twenty hours of "labor" at forty dollars per hour, claiming this was the lowest paid employee who can respond to the request. "Labor" is not a defined term within the Public Records Law and Access Regulations (Regulations). The College is advised to review the Regulations when responding to public records requests in the future, and to use the terminology and definitions from the Regulations in its written, good faith estimates. 950 C.M.R. 32.00. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 · Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Clara M. Elliott SPR15/430 Page Two September 22, 2015 Basis of this appeal-February 27, 2015 estimate This appeal by Attorney Shaevel concerns the February 27, 2015 written estimate from the College advising Mr. Rizzo that the initial cost estimate provided on October 22, 2014 only calculated searching for and providing the readily and searchable correspondence and emails of College's President, Vice President for Academic Affairs, Vice President for Administration and Finance, Academic Deans and the Human Resources Department. The estimate states that, "it has been brought to my attention that the MCCC may actually be looking for a search of a significantly greater number of College records than the College understood in its initial response. In addition, the search to date has exceeded the original estimate by 20 hours at $40 per hour, totaling $800 in additional search costs and additional $37.40 for 187 additional pages. Please send a check for $837." Your letter further states that "a search for possible additional documents and/or emails will require the Information Technology Department (IT) to search every administrator's active email account using a query search for the specific criteria in the request. The cost will be over $6,000, and is based on 164 hours at an hourly rate ofthirty-five ($35.00) dollars, the lowest paid IT employee able to conduct the search." Moreover, in conclusion you informed Mr. Rizzo the estimate does not include labor for the time and effort to review each email to determine if the records fit the criteria requested. Additionally, the costs are estimates and actual cost may be greater than estimated." On January 2015, Attorney Shaevel provided the College with a check for $216.00 (amount of the October estimate); the College cashed the check and provided Attorney Shaevel with two hundred sixty-seven (267) pages ofrecords enclosed with its February 27, 2015 letter. A review of the College's October letter did not inform Attorney Shaevel that the estimate provided within the content of the letter would only satisfy a portion of the requested records. In fact, the October estimate specifically re-states Mr. Rizzo's October 20, 2014 public records request, which is the exact request stated earlier in this determination. Moreover, the College did not inform Mr. Shaevel that the search for the records did not include all the requested records. It was only after Mr. Shaevel sent his check for the estimated cost, the College cashed the check, and provided records, that the College sought to recoup additional costs by sending an invoice. (Responses by Clara M. Elliott, Dean of Human Resources at the College on February 27, 2015 and July 17, 2015). The College failed to properly follow the tenets of the Public Records Law (Law) and its Regulations. Your February 27 letter is not an estimate, but rather an "invoice" for the records enclosed with your letter. The Public Records Law requires that a custodian send a detailed, written estimate prior to culling records, accepting the estimate funds and providing the records. There is no provision in the Law and Regulations that allows a custodian to recoup funds after records have been provided, and this office cannot mandate that a requester pay an "invoice."

Ms. Clara M. Elliott SPR15/430 Page Three September 22, 2015 Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian ofrecords may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1)(a). Where records are already in electronic format, such as email records, those records should be provided in electronic format by burning the records onto a digital video disc (DVD) or other means of electronic media storage. The custodian may charge for the search for the electronic records, any segregation of exempt material in the content of the emails, and for the cost of a DVD. In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c) (emphasis added). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). In instances where the requested records are electronic records, such as email records, the custodian should conduct a search of the email boxes and have the responsive records burned onto an electronic media storage device. Whereas email records are electronic records, they should be provided in their native format. Accordingly, the College has failed to properly provide a detailed written estimate in its initial response in October 2014 and in 2015 prior to providing Attorney Shaevel with the responsive records. This office has no authority to mandate that Attorney Shaevel pay the additional cost of $83 7. This administrative appeal is closed. To assist the College in responding to future public records requests, I enclose A Guide to the Massachusetts Public Records Law. This document is also available online at: www.sec.state.ma.us/pre/prepdf/guide.pdf. Supervisor of Records cc: William H. Shaevel, Esq. Carol Wolff Fallon, Esq.