Candice Choi v. University of Massachusetts - Medical School (SPR 20190225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2019 SPR19/0225 Mark L. Shelton University of Massachusetts - Medical School 333 South Street Shrewsbury, MA 01545 Dear Mr. Shelton: I have received the petition of Candice Choi appealing the response of the University of Massachusetts - Medical School (University) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Choi requested copies of all emails between two identified individuals. The University responded to her request by providing a fee estimate. 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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Mark L. Shelton SPR19/0225 Page 2 February 19, 2019 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 (4 ) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(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 indicates that the date range of the search is "Jan. 1, 2015 to the date of collection." The University indicates it has assessed a total fee of $62.50. The University explains that the fee is made up of" [ o ]ne (1) UMMS employee working 5. 5 hours to search and segregate the potentially responsive documents. As noted, however, the first four hours of this person's time is waived, and accordingly, this charge is only for 1.5 hours at $25.00 / hour ($37.50)," and "[t]wo (2) UMMS employees working a total of one hour at $25.00/hour ($25) to review and potentially redact and/or exclude any documents that may be exempt from the Public Records Law." The University indicates that "[a]s previously discussed, each of the employees' actual hourly rates are significantly higher than $25/hour, but in accordance with the law, UMMS is only permitted to charge $25/hour." The University is advised that under the Public Records Law "[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)." Based on the University's response, it is unclear how it is permitted to charge for time spent segregating and redacting the responsive records. Specifically, the University has not identified a law requiring segregation or redaction and to the best of my knowledge, the University has not submitted a petition under G. L. c. 66, § 10(d )(iv). Accordingly, the University must provide another response explaining how its fee complies with the Public Records Law or provide Ms. Choi with a revised fee in compliance with the Public Records Law. Order Accordingly, the University is ordered to provide Ms. Choi with a response to the 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

Mark L. Shelton SPR19/0225 Page 3 February 19, 2019 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: Candice Choi