Colman Herman v. University of Massachusetts - Boston (SPR 20190459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 13, 2019 SPR19/0459 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 narrowed his request on February 13, 2019, and requested" ... responsive records based on four hours of work. Please limit the search to interim chancellor Newman's files." Mr. Herman provided 17 search terms for this request. Previous appeals The requested records were the subject of previous appeals. See SPRl 8/2032 Determination of the Supervisor of Records (January 2, 2019) and SPR19/0146 Determination of the Supervisor of Records (February 5, 2019) (January 2nd and February 5th determinations). In my February 5th determination, I advised Mr. Herman to clarify certain information and encouraged both parties to communicate further to enable the University to provide the requested records. Mr. Herman narrowed his request as indicated above on February 13th. The University responded on February 26, 2019, providing a fee estimate. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPRl 9/0459, 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 page may be assessed for a black and white single or double-sided photocopy of a public record. 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. Fent on SPR19/0459 Page 2 March 13, 2019 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, § 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.06(4). The University's February 26th response In its February 26, 2019 response, the University states that "[u]pon completing the search for the 18 different terms ... [the University] ha[ s] determined that there are 208 potentially responsive emails." The University claims that it would have to carefully review each email for any information that should or must be redacted under Chapter 66. Thus, "[ s ]tudent education records, which are protected by the federal law Family Educational Rights and Privacy Act ('FERPA') and which are exempt from disclosure pursuant to exemption (a)[;] [p]ersonal information that is protected by the Massachusetts Fair Information Practices Act, M.G.L. Ch. 66A[;] [e]mployee personnel information, the disclosure of which may constitute an unwarranted invasion of personal privacy, ... under exemption (c)[; and] [r]ecords relating to policy development for a policy that is still being developed ... under exemption (d)." The University explains that prior to Mr. Herman's updated request, its employees had " ... spent three hours of time to search Interim Chancellor Newman and Mr. Dewayne Lehman's emails ...." The University also explains that "due to the exhaustive nature of [Mr. Herman's] request, which included 18 search terms and two modifying terms, [it] had to enlist the assistance of personnel in the [University's] IT department to complete the search. This exhaustive search ... took another four hours." As such, the University explains that its cost estimate, which includes time that has already incurred, is based on the following: "search: 7 hours at $25/hour = $75 (no charge for first 4 hours, which has already been exhausted)[;] Segregate/Redaction: 7 hours at $25/hour = $175 Total= $250." The University states that "[t]he lowest paid employee qualified to do the work is paid at $40 per hour. Therefore, the University] ha[ s] calculated the good faith estimate using the statutory rate of $25 per hour. This reflects an average of 2 minutes to read, redact as needed, each of the 206 emails." Fees for segregation and/or redaction time The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is

Matthew R. Fenton SPR19/0459 Page 3 March 13, 2019 capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4 ). In my February 5th determination, I found that" ... 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." See February 5th determination. Further, it appears the University is assessing a fee for potential redactions pursuant to Exemptions (c) and (d) of the Public Records Law. In my January 2nd determination, I advised the University that " ... although these exemptions permit 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, § 10(d )(iv), the University is not permitted to charge for redaction of personnel and policy related information." See G. L. c. 66, § lO(d)(iv); G. L. c. 4, § 7(26)(c); G. L. c. 4, § 7(26)(d); January 2nd determination. For the reasons discussed above, I find the University must revise its fee estimate or provide further explanation of how the fee assessed in its February 26th estimate is expressly provided for and consistent with G. L. c. 66, § 10(d ). Fair Information Practices Act (FIPA) In the University's February 26th response, it states that it has to redact "[p]ersonal information that is protected by the Massachusetts Fair Information Practices Act, M.G.L. Ch. 66A ..." Please be advised that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157. 160 (May 18, 1977). PIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by PIP A depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). PIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, PIPA may also operate to restrict disclosure. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the University is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Matthew R. Fenton SPR19/0459 Page 4 March 13, 2019 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: Colman Herman