Dexter Van Zile v. UMASS Amherst (SPR 20191146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 19, 2019 SPR19/1146 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts - Amherst 390 Whitmore Administration Building 181 President's Drive Amherst, MA O1 003 Dear Ms. Wilda: I have received the petition of Dexter Van Zile of the Committee for Accuracy in Middle East Reporting in America (CAMERA) appealing the response of the University of Massachusetts -Amherst (University) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 7, 2019, Mr. Van Zile requested" ... any and all communications regarding logistics and security issues regarding the 'Not Backing Down' event that took place at UMASS Amherst on May 5, 2019." The University provided its initial response on May 15, 2019, asking Mr. Van Zile to reduce the scope of his request because the parameters were too broad. On May 22, 2019, Mr. Van Zile narrowed his request to documents from a specified email address and subsequently, to "emails (incoming and outgoing) from [ an identified individual's] UMASS email account that contain the following words ...." Mr.Van Zile provided forty-seven search terms. The University responded on June 4, 2019, providing a fee estimate. Objecting to the fee, Mr. Van Zile petitioned this office and this appeal, SPR19/1146, was opened as a result. Agencies - fee estimate 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, § lO(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, § 10( d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than 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

Christine M. Wilda SPR19/1146 Page 2 June 19, 2019 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's fee estimate In its June 4, 2019 response, the University indicates that "[t]he email search generated over 9,000 emails. The estimated fee to produce the records will be $7,500. We estimate 2 minutes review per email at a rate of $25/hr." The University did not detail how much time it is allocating to each of the tasks, only that the University estimates that Mr. Van Zile would have to pay $7500 before records can be produced. The University is advised that a fee estimate must detail the amount of time necessary for each task, such as search, segregation or redaction. Based on the University's estimate, it is additionally uncertain whether the University is assessing a fee for printing or copying of the records nor is it clear the total number of hours the University estimates it requires to produce responsive records. Therefore, the University must clarify this estimate. 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. Based on the University's estimate, it is unclear whether the University is assessing a fee for the first four hours. Also, although the University indicates that it" ... estimate[s] 2 minutes review per email at a rate of $25/hr," the University did not explain whether the $25 .00 per hour rate is the lowest paid hourly rate of the employee capable of performing each of the tasks necessary. See 950 C.M.R. 32.07(2)(i). 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, § 10( d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Based on the University's estimate, it is uncertain if the University is assessing a fee for time spent segregating or redacting records. If the University intends on assessing such a fee, please note 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, § lO(d)(iv). See G. L.

Christine M. Wilda SPR19/1146 Page 3 June 19, 2019 c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the University has submitted a petition under G. L. c. 66, § 10(d )(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4 )(g). However, the University may provide additional information regarding how the redactions are required by law. Further, this office encourages Mr. Van Zile and the University to continue to communicate to facilitate providing the records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). 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 June 4th estimate is consistent 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. Conclusion Accordingly, the University is ordered to provide Mr. Van Zile 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: Dexter Van Zile