Colman Herman v. University of Massachusetts - Boston (SPR 20180921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 3, 2018 SPRlS/921 De Wayne Lehman Director of Communications University of Massachusetts Boston 100 Morrissey Blvd. Dorchester, MA 02125 Dear Mr. Lehman: I have received the petition of Colman Herman 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, on June 8, 2018, Mr. Herman requested records related to the Confucius Institute at the University. Previous appeal This request was the subject of a previous appeal. See SPRl 8/842 Determination of the Supervisor of Records (June 20, 2018). I closed SPRl 8/842 by ordering the University to provide a response to Mr. Herman made in accordance with the Public Records Law, its Access Regulations and the order within ten business days. On June 21, 2018, the University provided Mr. Herman with a response including a fee estimate. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR18/921, was opened as a result. 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, § lOA(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 town 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, § lO(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 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

DeW ayne Lehman SPRI°8/921 Page 2 July 3, 2018 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates In the University's June 21st response, it estimates a total fee of$937.50 to search for, segregate and redact responsive records. The University indicates it intends to search the records of 15 employees. It additionally indicates it intends to redact personnel information or student educational records pursuant to Exemptions (a) and (c) of the Public Records Law and the Family Educational Rights and Privacy Act (FERP A). G. L. c. 4, § 7(26)(a), (c); 20 U.S.C. § 1232(g); 34 C.F.R. Part 99. The University estimates a total of22.5 hours of search time and 15 hours of segregation and redaction time and indicates its fee includes the first four hours of work completed. The University explains these totals are attributable to one and a half hours of search. and one hour of redaction per each of the six employees. The University indicates it is charging a total fee of $7 5 for two-sided print outs of the records. The University estimates a total of 7 50 emails broken down by employee and additionally estimates each email consists of four pages, totaling 3,000 pages. 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 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, § lO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 CMR 32.06(4). In regards to the University's fee for hard copies, whereas the University has provided a detailed explanation and breakdown of its fee including a list of the employees, the number of estimated emails attributable to employee, and it has indicated it is charging five cents per double sided page, I find this fee is in compliance with the Public Records Law and its Regulations. See G. L. c. 66, § IO(d)(i); 950 C.M.R. 32.07(2)(e). The University is permitted to charge $75 for hard copies of the records.

DeW ayne Lehman SPRlS/921 Page 3 July 3, 2018 The University indicates it is charging for the first four hours of employee time "because this request is one of four that [Mr. Herman has] recently submitted to [the University] on the same subject." The University has previously provided this office a response in support of charging a fee for the first four hours of work as it relates to the four requests. Although the University provided documentation of Mr. Herman's previous requests, it is not permitted to charge for the first four hours of work completed for this separate request. See G. L. c. 66, § lO(d)(ii). The University indicates it is has estimated its fee for search, segregation and redaction at a "rate of $25/hour, rather than the actual hourly salary of the employees who will perform the work." The University may charge an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to complete the task. G. L. c. 66, § lO(d)(ii). However, the University's response lacks confirmation that it intends to the use the lowest paid employee capable of performing the task of search, segregation and redaction. The University must clarify this. The University is not permitted to charge for segregation and redaction unless required by law or approved by the Supervisor of Records under a petition. G. L. c. 66, § lO(d)(iv). Here, the University cites to FERPA and Exemption (c). To the extent that the records contain information protected by FERPA , the University is permitted to charge for redaction of such information. In regards to its Exemption (c ) claim, the University is advised that although Exemption ( c) permits redaction under the Public Records Law, it does not require it. Whereas, Exemption (c ) does not require redaction by law, and the University has not received approval by the Supervisor of Records through a petition, the University is not permitted to charge for redaction of personnel information. See G. L. c. 66, § lO(d)(iv); G. L. c. 4, § 7(26)(c). Consequently, I find the University must revise its written good faith estimate for the cost of complying with Mr. Herman's request in manner consistent with the Public Records Law, its Regulations and this determination. Upon payment of the fee, the University is ordered to provide the records in a timely manner. .Order Accordingly, the University is ordered to provide Mr. Herman with a response to his request, provided 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.

De Wayne Lehman SPR18/921 Page 4 July 3, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman