Colman Herman v. University of Massachusetts - Boston (SPR 20190919)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2019 · SPR19/0919 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]." On February 13, 2019, Mr. Herman 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); SPR19/0146 Determination of the Supervisor of Records (February 5, 2019); SPR19/0459 Determination of the Supervisor of Records (March 13, 2019); SPR19/0686 Determination of the Supervisor of Records (April 16, 2019). In my April 16th 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. Subsequently, the University provided a response dated April 29, 2019. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPR19/0919, was opened as a result. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those 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 SPR19/0919 Page2 May 22, 2019 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 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, § IO(d)(ii); 950 C.M.R. 32.06(4). Appeal In its February 26, 2019 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." In the University's March 26, 2019 response, it explained 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 explained 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 oflnterim Chancellor Newman's emails took another four hours." The University indicated 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 ...." In my March 13t1 determination, I found that based on the University's responses, the University is permitted to assess a fee for time to search for the responsive records as it pertains to Mr. Herman's February 13, 2019 request, but cannot assess a fee for the first 4 hours it had incurred prior to the February 13th request. See SPR19/0686. In its April 29th response, the University asserts that "Mr. Herman's February 13th request was not a new request. Rather it was a modified request, which he made as a result ofUMass Boston's multiple good-faith suggestions to Mr. Herman's initial request that was made on November 19th in an attempt to lower the potential fees associated with meeting his request. The

Matthew R. Fenlon SPR19/0919 Page 3 May 22, 2019 process of searching for records responsive to Mr. Herman's February 13th is the same process of searching for records responsive to Mr. Herman's November 19th request, which was already begun. Searching for records responsive to the initial November 19th request and the follow-up, modified requests related to that November 19th request, required 7 hours of UMass Boston staff time. Furthermore, segregating and redacting the responsive records would require an additional 7 hours." The University asserts that "[i]t makes sense to afford members of the public four hours free for time spent by state agencies to search for, locate and review potentially responsive records, and it makes sense to charge requestors for such work that exceeds four hours, since it is a drain on public resources to undertake the work necessary to comply with the request. Where a requestor makes broad requests and the responding state agency incurs significant time and expense to search for records and provides the requestor with an estimate and suggested modifications to reduce the costs to the requestor, it does not make sense to (mis)characterize the modified request as a 'new' request, for purposes of avoiding the fee set forth in the regulations. Consequently, it is unclear to UMass Boston why the Supervisor is ordering a revised fee estimate for Mr. Herman's February 13th modification of his original November 19 request." The Public Records Law permits an agency to charge a fee for the cost of complying with the records request, which "shall not exceed the actual cost ofreproducing the record." See G. L. c. 66, § IO(d); 950 C.M.R. 32.07(2)(a), (c) (an agency may "assess a reasonable fee for the production of a public record," which "shall not exceed the actual cost of reproducing the record."). The Public Records Law does not provide for allocating time spent searching for records responsive to an unfulfilled previous request to the fee estimate for any subsequent new or revised request. See also id. Accordingly, in order to be in compliance with the Public Records Law and its Regulations, the University's fee estimate for the February 13th request must reflect the actual cost of the reproducing records responsive to the February 13th request only. The University must demonstrate that its fee reflects the total cost of complying with this February 13th request and exclude any previous request. For the reasons discussed above, I find the University must revise its fee estimate and provide Mr. Herman with the revised fee estimate in compliance with G. L. C. 66, § 10(d ). 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.

Matthew R. Fenlon SPR19/0919 Page4 May 22, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman