Lisa Ducharme v. Westfield State University (SPR 20180885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2018 SPRlS/885 Tricia M. Oliver Director of Campus Communication Westfield State University 3 3 3 Western A venue Westfield, MA 01086 Dear Ms. Oliver: I have received the petition of Lisa Ducharme appealing the response of the Westfield State University (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ducharme sent a letter on February 13, 2018 to the University requesting "emails dated between January 1, 2015 to February 12, 2018." The University was given multiple time extensions to provide the records. Ms. Ducharme states that she received an invoice from the University on April 27, 2018 of an estimate of$1,268.75. On April 28, 2018, Ms. Ducharme sent an email to this office appealing the University's fee estimate based on double redactions, fee charged for the double redactions, excess redactions, and additional time billed. On May 17, 2018, I issued a determination encouraging both parties to communicate further to enable the University to provide a more refined search for Ms. Ducharme. See SPR18/618 Supervisor of Records Determination (May 17, 2018). Ms. Ducharme appealed the most recent revised fee estimate by the University. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provide;:d. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10(d )(i). 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

Ms. Tricia M. Oliver SPR18/885 Page 2 June 27, 2018 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. However, agencies may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § IO(d)(iv). 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Appeal The University has not identified the employees who will be segregating the records, or identified which exemptions allow for the redactions of records, or specified how the exemptions apply to the withheld records. See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). It is unclear that the lowest paid employee rate has been assigned to the segregation of records. See G. L. c. 66, § 10(d )(ii) (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). With regards to redactions, I am not aware of any petitions submitted by the University to this office for approval to charge for redactions. See G. L. c. 66, § lO(d)(iv) (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). The University must file a fee petition for approval to charge a fee for redactions of records when the redactions are not required by law. Id. With respect to the amount of hours needed to comply with the request, the University has not met its burden to show why twenty-one hours are needed to produce responsive records. See G. L. c. 66, § 10(d ). Further, it is unclear whether segregation and/or redaction of responsive records is required by law. See G. L. c. 66, § IO(d)(iii) (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, § 1O (d)(iv)). The University must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, § lO(d)(i). The University's fee estimate must provide clarity on what documents are being produced, reasons for redaction of documents, and the associated fees. This office encourages both parties to communicate further to enable the University to provide a more refined search for Ms. Ducharme. See G. L. c. 66, § IO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor

Ms. Tricia M. Oliver SPR18/885 Page 3 June 27, 2018 to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Order Accordingly, the University is hereby ordered to provide Ms. Ducharme with a revised fee estimate 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Lisa Ducharme