Hauff, Bret v. Roxbury Community College (SPR 20150622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

November 19, 2015 SPR15/618-625; SPR15/648; SPR15/679; SPR15/710 and SPR15/778

Mr. Kenneth A. Tashjy, Esq. General Counsel

Massachusetts Community Colleges 591 Springs Road, Building 2 Bedford, MA 01730

Dear Attorney Tashjy:

I have received the petition of Brett Hauff, of the New England Center for Investigative Reporting, appealing the written estimates that were received in response to requests made to twelve (12) of the Massachusetts Community Colleges, including Berkshire Community College (SPR15/778), Bristol Community College (SPR15/623), Cape Cod Community College (SPR15/620), Massasoit Community College (SPR15/624), Mass Bay Community College (SPR15/710), Middlesex Community College (SPR15/619), Mount Wachusett Community College (SPR15/625), Northern Essex Community College (SPR15/618), North Shore Community College (SPR15/648), Quinsigamond Community College (SPR15/679), Roxbury Community College(SPR15/622) and Springfield Technical Community College (SPR15/621) (each a College, or as a group Colleges). G. L. c. 66, § 10(b); see also 950.C.M.R. 32.08(2). Whereas the requests are identical and the responses are substantially similar, I have combined the appeals into one administrative order.

Specifically, Mr. Hauff requested access to and copies of:

1. Current employment contracts outlining benefits and pay, including severance pay for

- the President, Provost or Chief Academic Officer, all Vice Presidents or Executive Vice Presidents, Chief Business Officer, All Chief of Development and/or Advancement Officers and all Athletic Directors,

2. All employment contracts with the spouse of the institution’s Chief Executive Officer, and

3. All records listing reimbursed expenses paid to the institution’s Chief Executive Officer from July 1, 2012-June 30, 2015.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre :

Mr. Kenneth A. Tashjy, Esq. SPR15/618-625; SPR15/648; SPR15/679; Page Two SPR15/710 and SPR15/778 November 19, 2015

Each College provided a written fee estimate in response to Mr. Hauff’s public records request. The estimates ranged in costs of $90.67 from North Shore Community College to $378.70 from Northern Essex Community College. The lack of fee waivers and variation in the estimates provided by the Colleges are the basis for Mr. Hauff’s petition for an appeal.

Fee Waiver

Mr. Hauff has requested that the Colleges waive all applicable fees due to the fact that the New England Center for Investigative Reporting is a non-profit journalism organization, and the requested records are of interest to the public. Moreover, he informed this office that he made the identical request to Bridgewater State University, Bunker Hill Community College, Fitchburg State University, Framingham State University, Greenfield Community College, Holyoke Community College, Massachusetts College of Art and Design, Massachusetts College of Liberal Arts, Salem State University, Westfield State University and Worcester State University and all these institutions waived fees.

It is my understanding that the Colleges that provided fee estimates have declined to waive the public records fees. While this office encourages custodians to waive fees in providing public records, the Supervisor of Records has no authority to mandate that a custodian do so. See 950 C.M.R. 32.06. Nor, does this office have authority to mandate that all custodians waive fees because a different custodian has already done so.

Fees

A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records).

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 re-file 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).

A review of the written estimates provided to Mr. Hauff reveals that the Colleges continue to use a standardized form to list the fees incurred in complying with a public records request. This office previously learned of the Colleges’ use of this standardized form while

Mr. Kenneth A. Tashjy, Esq. SPR15/618-625; SPR15/648; SPR15/679; Page Three . SPR15/710 and SPR15S/778 November 19, 2015

reviewing appeals from another requester. “Labor” and “Materials” are not defined terms within the Public Records Law and Access Regulations (Regulations). Whereas, the Colleges have not cited any exemptions in the Public Records Law to account for segregation (redaction) of data or information within the content of the records, I must assume that what is meant by “Labor” is “search time.” The Colleges are advised to cease use of the words, “Labor” and Materials” in their written, good faith estimates, and specifically use search time, segregation time and copies (photocopies and/or computer-generated copies) to explain estimated fees at the lowest paid hourly rate of the employee capable of the particular task. I advise the Colleges to review the Regulations when responding to public records requests in the future, and drafting written, good faith estimates. 950 C.M.R. 32.00.

The total cost assessed by North Shore Community College (North Shore) of $90.67 is reasonable considering the hourly rates of $15.43 and $21.12 for three (3) hours to search for records, which includes copying and re-filing records. However, the costs assessed by all the other Colleges list hourly rates to conduct the search including making copies from $18.97 (administrative clerk) to $61.00 (rate of an Assistant Vice President), and a high number of hours to complete the task of searching for the records ranging from 3 hours 30 minutes to 10 hours. [ find that the Colleges, with the exception of North Shore’s $90.67, are unreasonable as to the hourly rates, and number of hours to provide the records.

The purpose of the Public Records Law is to shine light on the business of the government including, in these appeals, information concerning the duties and responsibilities of government employees, and any taxpayer monies paid to a government employee in the course of that employment. The fees assessed for complying with a public records request must be reasonable and should not be used as a revenue stream.

Accordingly, I find that the Colleges, with the exception of North Shore, have not met the burden of the Public Records Law and its Regulations to determine the need for the number of persons at the hourly rates stated, and the number of hours to provide responsive records, Accordingly, each College with the exception of North Shore is hereby ordered to provide Mr. Hauff with revised estimates for his public records requests within ten (10) days, to be prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of the revised estimate must be provided to this office. It is preferable to,send an electronic copy of this response to this office at pre@sec.state.ma.us. Once the fees.argpaid, you must provide Mr.

illiams upervisor of Records

cc: Mr. Brett Hauff