Colman Herman v. University of Massachusetts - Boston (SPR 20182032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 2, 2019 SPRlS/2032 Matthew R. Fenlon Office of Communications University of Massachusetts -Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018, Mr. Herman requested" ... hard copies and electronic copies of any and all communications related to the problems encountered this year with the on-campus housing at the [University]." Mr. Herman noted that "[c ]ommunications include, but are not limited to, emails, letters, memoranda, faxes, and notes ..." and identified certain individuals whose files should be searched for responsive records. Following a communication with the University, Mr. Herman narrowed his search for emails from two named individuals pertaining to seventeen (17) specific search terms. The University provided a response dated November 30, 2018, including two separate fee estimates. Objecting to the fees, Mr. Herman petitioned this office and this appeal, SPRl 8/2032, was opened as a result. While this appeal was pending, the University provided a supplemental response dated December 18, 2018. Fee estimate - agencies 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, § lO(d)(i). Agencies may not assess a fee for the first 4 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 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

Mathew R. Fenlon SPR18/2032 Page2 January 2, 2019 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, § lO(d)(ii); 950 C.M.R. 32.06(4). The University's November 3rfh response In its November 30, 2018 response, the University provided an estimate of $1400 comprising of 59 hours of segregation and redaction time at a rate of $25.00 per hour. The University explained that "[u]pon completing the search for the 17 different terms in [the identified individuals'] emails ... there were 1768 potentially responsive emails." The University explained that it has to carefully review each email for any potential redactions required under Chapter 66 of the General Laws." The University further states that it would have to redact student education records under the Federal Educational Rights and Privacy Act (FERP A) as it operates through Exemption (a), personnel information under Exemption (c), and records relating to policy development that is still being developed under Exemption ( d). The University states that the first four hours are free and caps the hourly rate at $25 per hour as the lowest paid employee qualified to perform the task earns $40 per hour. The University explains that the indicated hours for segregation and redaction "reflects an average of 2 minutes to read and redact, as needed, each of the 1768 emails." Further, the University suggested that because many of the communications appear to be umelated to the purpose of Mr. Herman's inquiry, and in order to limit the fees associated with the request, Mr. Herman should narrow his request to include only two of the search terms. Based on the suggested modification, the University included a second estimate and indicated that this'' ... modification ... yielded 334 potentially responsive emails." The University explained that such emails would have to be redacted based on the above referenced exemptions and claimed there may be additional exemptions, as the emails have not yet been reviewed. Based on this suggested modification, the University provided an estimate of $250 comprising of 11 hours of segregation and redaction time at a rate of $25.00 per hour, minus the first 4 hours. Fees to search for, compile, segregate, redact or reproduce a record request In its November 30th fee estimate the University indicates that the $250 estimate is based on the following: "Search: 2 hours at $25/hour = $0 (no charge for first 3 hours, which has already occurred)[;] Segregate/Redaction: 11 hours at $25/hour = $250 (no charge for first 1 hour)." In his appeal petition Mr. Herman asserts "Mr. Fenlon attempts to charge off the time it took him to prepare his fee estimate to the free hours allowed by the law. That is not permissible. Moreover, I did not approve any such fees." I find that the University must clarify how it spent the "first 3 hours" of search time and "first 1 hour" of segregation/redaction time it is providing for free as described above; in

Mathew R. Fenlon SPR18/2032 Page 3 January 2, 2019 particular, it is unclear whether it spent these hours preparing the fee estimate and how this fee estimate complies with the provision of G. L. c. 66, § 10(d )(ii)(B) which provides that the fee "shall not be assessed for the first 4 hours of work performed." It is also unclear why the University requires an additional 2 hours of search time. The University is also advised that under the updated Public Records Law, 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). In its fee estimate, the University cites to FERPA and Exemptions (c) and (d). To the extent that the records contain information protected by FERPA , the University is permitted to charge for redaction of such information. However, in regards to its Exemptions (c) and (d) claims, the University is advised that although these exemptions pennit redaction under the Public Records Law, it does not require it. Consequently, whereas, Exemptions ( c) and ( d) does not require redaction by law, and the University has not submitted a petition under G. L. c. 66, § lO(d)(iv), the University is not permitted to charge for redaction of personnel and policy related information. See G. L. c. 66, § IO(d)(iv); G. L. c. 4, § 7(26)(c); G. L. c. 4, § 7(26)(d). Further, the University estimates that it will take 2 minutes on average to read and redact each email. However, it is unclear why 2 minutes is necessary for reviewing and redacting all categories of these emails. See G. L. c. 66, § 10(d ) ( a records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection). Modification of request In its December 18, 2018 supplemental response, the University reiterates that it has voluntarily offered Mr. Herman numerous modifications to limit the costs associated with meeting his request and states that it remains willing to work with him on lowering the cost. This office will forward Mr. Herman a copy of the December 18th response in case he has yet to receive it. Whereas the University has suggested this modification and provided a lesser fee estimate based on this modification, this office encourages both parties to communicate further to enable the University to provide the requested records if Mr. Herman wishes to modify his original request. See G. L. c. 66, § lO(b)(vii) (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 the records sought more efficiently and affordably). Conclusion Accordingly, the University is ordered to provide Mr. Herman with a revised fee estimate

Mathew R. Fenlon SPR18/2032 Page4 January 2, 2019 in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman