Colman Herman v. University of Massachusetts - Boston (SPR 20190686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 16, 2019 SPR19/0686 Matthew R. Fenlon Records Access Officer 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 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 indicated "[p]lease use these search terms: capstone, residence hall, dorm, toilet, elevator, Krantz, Globe, showers, construction, food, leaks, security, alcohol, drugs, smoking. For each of these terms (except for 'dorm' and 'residence hall') include 'and dorm' and 'and residence hall' ... " Previous appeals The requested records were the subject of previous appeals. See SPRl 8/2032 Determination of the Supervisor of Records (January 2, 2019); SPRl 9/0146 Determination of the Supervisor of Records (February 5, 2019); and SPR19/0459 Determination of the Supervisor of Records (March 13, 2019) (March 13th determination). In my March 13th determination, I ordered the University to provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The University responded on March 26, 2019, providing additional information regarding its fee estimate. ---------i-U---ttn=satisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR19/0686, was opened as a result. 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 SPR19/0686 Page 2 April 16, 2019 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, § 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(ii); 950 C.M.R. 32.06(4). The University's March 26th response In its March 26, 2019 response, the University recounts the time it spent conducting searches to identify the universe of potentially responsive records and how it has assisted Mr. Herman in modifying his original request in order to produce records more affordably or without incurring any cost. The University explains that upon performing the searches it" ... determined there were 208 potentially responsive emails. Prior to Mr. Herman's updated request on February 13t\ employees ofUMass Boston spent three hours of time to search Interim Chancellor Newman and Mr. Dewayne Lehman's emails, as detailed in [its] February 26 letter." The University explains that" ... due to the exhaustive nature of Mr. Herman's February 13th 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 of Interim Chancellor Newman's emails took another four hours." The University indicates that since Mr. Herman's November 19th initial request, it has" ... on numerous occasions offered Mr. Herman additional modifications that would further reduce the fees incurred searching, compiling, segregating and potentially redacting ...." ________ _,W-ith~re..,,,ga:rd~-dcV!c~ldclv---'='clH-4'-l~iclry'-----""'*"'-""--YdG.,,__f-Hi-~""-' performed as of yet. Instead, after collecting the documents, [the University] performed a cursory assessment in order to be able to provide Mr. Herman with a good faith estimate. That cursory assessment revealed that at least some of the records responsive to Mr. Herman's request constitute 'education records' that are subject to FERPA --and, therefore, subject to mandatory redaction or withholding pursuant to federal law. Thus, [the University] is now aware that it must

Matthew R. Fenlon SPR19/0686 Page 3 April 16, 2019 review all of the documents responsive to the request in order to determine which documents it is obligated by statute to redact or withhold." The University explains that its" ... good faith estimate includes time to review each of the documents to determine if they contain information that must [be] withheld or redacted, pursuant to statue [sic]. To be clear, [the University] cannot uphold its obligation to protect information which is required by statute to be redacted without incurring the cost of time reviewing all of the records to ascertain which among them must be redacted." The University further states that its "fee estimate assumes it will take approximately two minutes to review each document to ascertain whether any of the document constitutes an 'education record' protected by FERP A for which redaction or withholding is mandated by federal statute." The University asserts that "[t]here is no additional or separate component of the estimate for time spent reviewing or redacting information that may be subject to exemptions·(c) or(d)." In its February 26th fee estimate, the University explained 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." See March 13th determination. Based on the University's response, I find the University can assess a fee for time to search for the responsive records as it pertains to Mr. Herman's narrowed request of February 13th. Thus, the University cannot assess a fee for the first 4 hours it has already incurred prior to the February 13th narrowed request. In his petition for appeal, Mr. Herman states "[i]t is not clear to me whether or not Mr. Fenton [sic] now understands that he cannot charge me for redactions unless there is a specific statute that requires the redactions or you approve the charging for redactions. He seems to be saying his estimate reflects that, but he has not reduced the $250 that he has been quoting all along since November 30, 2018." In its response the University indicates that a "cursory assessment revealed that at least some of the records responsive to Mr. Herman's request constitute 'education records' that are subject to FERP A --and, therefore, subject to mandatory redaction or withholding pursuant to federal law." As such, the University indicates that it "must review all of the documents responsive to the request in order to determine which documents it is obligated by statute to redact or withhold." The University also indicates that "[t]here is no additional or separate component of the estimate for time spent reviewing or redacting information that may be subject to exemptions (c) or (d)." In my February 5th determination, I found that" ... to the extent that the records contain information protected by FERP A, the University is permitted to charge for redaction of such information from the responsive records." See February 5th determination. For the reasons discussed above, I find the University must revise its fee estimate and provide Mr. Herman with the revised fee estimate that complies with G. L. c. 66, § 10( d). 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.

Matthew R. Fenlon SPR19/0686 Page4 April 16, 2019 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 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