Richard Maximus Strahan v. University of Massachusetts - Boston (SPR 20180879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29, 2018 SPRlS/879 Matt Fenlon Public Records Administrator University of Massachusetts - Boston 100 Morrissey Boulevard Boston, MA 02125-3393 Dear Mr. Fenlon: I have received the petition of Richard Maximu s Strahan appealing the response of the University of Massachusetts - Boston (University) to a request for public records. G. L. c. 66, § lOA; See also 950 C.M.R. 32.08(1). Specifically, Mr. Strahan requested four categories of records related to a certain incident that occurred at the University. The University responded on June 15, 2018 by providing a fee estimate for the production ofrecords. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § 10(d )(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 CMR 32.06(4). In its June 15th response the University provided a fee estimate of $362. 70 for the production of records. This fee is based on twelve hours for "Segregation/Redaction" at $25 per 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

Matt Fenlon SPR18/879 Page2 June 29, 2018 hour; two hours for "Photocopying, employee time" at $25 per hour, and $12.70 for copying costs at $0.05 per page for 254 pages. The University indicates "[r]eview (and possible redaction) is necessary as the responsive records may contain information that is subject to exemptions and/or may not be released pursuant to applicable federal or state laws. To the extent that there is any information that is protected by the attorney client privilege or the work product doctrine, such information will also be withheld or redacted." It appears the University is including time spent segregating or redacting records in this fee estimate. Please note that under the updated Public Records Law effective January 1, 2017, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). To the best ofmy knowledge, the University has not submitted a petition under G. L. c. 66, § lO(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 CMR 32.06(4)(g). Further, it is unclear how segregation or redaction is required by law in this matter; for example, it is not clear what type of information is contained in the responsive records, and which statutes or privileges, if any, require segregation or redaction. In addition, G.L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." See also 950 C.M.R 32.06(2)(c) (indicating that "a records access officer shall not charge a fee for the provision of a public record unless the records access officer responded to the requester within ten business days under M.G.L. c. 66, § lO(b)"). Based on a review of the file, I find the University must explain whether it responded to Mr. ih Strahan's May 1 request in a manner consistent with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Please note that an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably. See G. L. c. 66, § 1 O(b )(vii). Conclusion Accordingly, the University is ordered to provide Mr. Strahan a response in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response 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.

Matt Fenlon SPR18/879 Page 3 June 29, 2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan