Colman M. Herman v. University of Massachusetts - Boston (SPR 20191130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 20, 2019 SPR19/1130 Matthew R. Fenlon Public Records Administrator 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 This request was 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); SPR19/0919 Determination of the Supervisor of Records (May 22, 2019). In my May 22nd determination, I ordered the University 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. Subsequently, the University provided another response dated June 5, 2019. Unsatisfied with the University's June 5th response, Mr. Herman petitioned this office and this appeal, SPR19/1030, 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. Fent on SPR19/1030 Page2 June 20, 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, § IO(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, § lO(d)(ii); 950 C.M.R. 32.06(4). Appeal In its June 5th fee estimate, the University indicates it is charging for 7 hours of search time, 7 hours of segregation and redaction time at a rate of $25 for a total fee of $250. The University indicates it "will have to carefully review each email for any information that should or must be redacted under Chapter 66 of the General Laws." The University indicates this includes: 1. "[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);" 2. "[p ]ersonal information that is protected by the Massachusetts Fair Information Practices Act, M.G.L. Ch. 66A;" 3. "[e]mployee personnel information, the disclosure of which may constitute an unwarranted invasion of personal privacy, and which is exempt from disclosure under exemption (c);" 4) "[r]ecords relating to policy development for a policy that is still being developed, which are exempt from disclosure under exemption (d)." The University is reminded that under the updated Public Records Law, a fee may 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 its fee estimate, the University cites to FERPA, the Fair Information Practices Act (FIPA) and Exemptions (c) and (d) of the Public Records Law. To the extent that the records contain information protected by FERPA, the University is permitted to charge for redaction of such information. However, in regards to its Exemptions ( c) and ( d) claims, the University is advised 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

Matthew R. Fenton SPR19/1030 Page 3 June 20, 2019 personnel and policy related information. See G. L. c. 66, § 10( d)(iv); G. L. c. 4, § 7(26)( c ); G. L. C. 4, § 7(26)(d). Please be advised that the Fair Information Practices Act (FIP A) 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). FIPA 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 FIP 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"). FIP 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, FIP A may also operate to restrict disclosure. Order 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 M. Herman