Colman Herman v. University of Massachusetts - Boston (SPR 20190146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2019 SPR19/0146 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, § lOA; 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. Previous appeal This request was the subject of a previous appeal. See SPR18/2032 Determination of the Supervisor of Records (January 2, 2019) (January 2°d determination). In my January 2nd determination, I ordered the University to provide Mr. Herman with a revised fee estimate in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the January 2nd determination, the University provided a response dated January 15, 2019, which provided additional information regarding its fee estimate. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR19/0146, was opened as a result. 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 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

Matthew R. Fenlon SPR19/146 Page2 February 5, 2019 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 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 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 January 15th response In my January 2nd determination, I directed the University to clarify how it "spent the first 3 hours of search time" and "first 1 hour of segregation/redaction time it is providing for free." In its January 15, 2019 response, the University explains that because Mr. Herman's original request was extremely broad, it suggested that Mr. Herman modify his request. You indicate, that the University" ... and others undertook to perform searches of our email system in order to ascertain what effect the imposition of limitations (i.e., search terms, time frames, limiting the individual targets to be searched, etc.) would have on the results." The University states that it" . . . needed to do so in order to determine which combination of search terms brought the volume of responsive documents down to a number that could likely be collected, reviewed and, if necessary, redacted for a manageable fee." The University explains that it "had to enlist the assistance of personnel in the UMass Boston IT department to complete the search of several different people's documents. One hour was spent searching for the initial request of 'emails from Interim Chancellor Katherine Newman and De Wayne Lehman from November 1st to November 21st that include the following terms: Krantz, Globe, Herald, WBUR, showers, construction, food, leaks, security, alcohol, drugs, smoking, capstone, residence hall, dorm, toilet and elevator."' The University further explains that because the generated documents potentially contains information that is protected under FERP A and other exemptions, "it has to review each of the 1,768 documents to determine whether redactions or withholdings would be necessary. Thus, [the University] spent two additional hours performing additional, modified searches. Specifically, we performed searches for records with the previous search terms, but also included 'and dorm' or 'and residence hall' to each query. The purpose of performing these additional searches was to determine whether it might reduce the number of responsive documents down to a level that could be compiled, segregated, redacted (if necessary) and reproduced for a nominal or no fee." The University explains that it advised Mr. Herman of this modified request which generated 334 potentially responsive emails and provided a fee estimate for those documents. The University posits that, "[i]n total, [it] has spent three hours searching for records requested

Matthew R. Fenlon SPR19/146 Page 3 February 5, 2019 by Mr. Herman [a nd] the three hours spent does not include any time for segregating or redacting records, nor does it include any of the time spent preparing any fee estimate." Citing G. L. 66, § lO(d)(ii), the University states that "when compiling the fee estimate, [it] included the time spent searching for records responsive to Mr. Herman's original request and the modified requests. The calculation was in accord with the statute and was made in good faith." The University notes that the lowest paid employee who has the necessary skill required to search for the records is paid in excess of $25 per hour but it capped the hourly rate at $25.00 in calculating the fee estimate. The University also explains that "[h]aving performed only a cursory review of the documents responsive to the searches done for Mr. Herman, noting the length and density of those documents, it appears likely that the average time to review each document and determine whether any information contained in the document is subject to redaction may exceed two minutes. Nonetheless, because the Supervisor's Office previously advised us to use two minutes, that is the time per email we used for our good faith estimate." As such, the University asserts that its November 30th fee estimate is consistent with the Supervisor's order and notes that although it has suggested reasonable modifications to reduce the fees incurred searching, compiling, segregating and potentially redacting the records, Mr. Herman has declined to do so but it remains willing to work with Mr. Herman to refine his request if he wishes to do so. In light of the University's explanation regarding the applicability of the Family Educational Rights and Privacy Act (FERP A), I find the University has demonstrated that segregation or redaction is required by law. See G. L. c. 66, § lO(d)(iii). As such, to the extent that the records contain information protected by FERPA , the University is permitted to charge for redaction of such information from the responsive records. Clarification In the University's November 30th response, it provided two fee estimates. The first, based on an average of 2 minutes to review and redact (as needed) each of the 1,768 potential responsive emails records, the University assessed: "l hours at $25/hour = $0 (no charge for first 1 hour, which has already occurred)[;] Segregate/Redaction: 59 hours at $25/hour = $1400 (no charge for first 3 hours). Total= $1400." The second fee estimate is based on the University's suggested modification of Mr. Herman's request (2 minutes to review and redact (as needed) each of the 334 potential responsive emails records: "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 lhour)." Based on the provision of these two cost estimates and Mr. Herman's appeal petition, it is unclear which fee estimate Mr. Herman is objecting to. Therefore, Mr. Herman must clarify this matter. Additionally, in his petition for appeal, Mr. Herman claims "[i]t still appears that Mr. Fenton [sic] is charging for preparing his fee estimate. What records custodian customarily do is a general scan ofrecords and then base an estimated fee on that." Whereas the University has stated that "the three hours spent does not include any time for segregating or redacting records,

Matthew R. Fenlon SPR19/146 Page 4 February 5, 2019 nor does it include any of the time spent preparing any fee estimate," Mr. Herman must clarify what he means by the University is charging for preparing its fee estimate. Conclusion Whereas the University has stated that it "remains willing to work with Mr. Herman to refine his request if he wishes to do," 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman