Colman Herman v. University of Massachusetts - Boston (SPR 20191349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2019 SPR19/1349 Matthew R. Fenlon University of Massachusetts - Boston 100 Morrissey Blvd 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]." 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 SPR18/2032 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); SPR19/1130 Determination of the Supervisor of Records (June 20, 2019). In my June 201h 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 July 5, 2019. Unsatisfied with the University's July 5th response, Mr. Herman petitioned this office and this appeal, SPR19/1349, 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 SPR19/1349 Page 2 July 22, 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, § lO(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 paii 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, § 10( d)(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4 ). Appeal In its June 5th fee estimate, the University indicated that 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 indicated that 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 indicated that this includes: 1. "[s]tudent education records, which are protected by the federal law Family Educational Rights and Privacy Act ("FERP A") 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)." In my June 20th 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. However, in regards to its Exemptions ( c) and ( d) claims, 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). In its July 5th response, the University indicates that "[n]o redactions have been performed as of yet. The search time alone for this request totaled seven hours, which exceeds

Matthew R. Fenlon SPR19/1349 Page 3 July 22, 2019 the statutorily-mandated free four hours. Mr. Herman has already stated he is not willing to pay for the time spent searching for the records he requested. Furthermore, a cursory assessment of the searches has revealed that at least some of the records responsive to Mr. Herman's request contain education records subject to FERP A --and, therefore, subject to mandatory redaction pursuant to federal law. Because UMass is aware that at least some of the documents contain FERPA-protected information, we are obligated to review all of the documents, in order to ascertain which must be redacted. Thus, the June 5 good faith estimate includes time to review each document to determine which documents are subject to such redactions. To be clear, UMass cannot uphold its obligation to protect student information which is required by statute to be redacted without incurring the cost of time reviewing all of the records to ascertain which must be redacted." Despite the University's June 5th and July 5th responses, it remains unclear how its fee is in compliance with the Public Records Law. Specifically, it is unclear whether the University has revised its fee to include only search time and redaction time pursuant to FERP A. It is additionally unclear what the University is charging to redact FERP A protected information, specifically, it is unclear how much time the University estimates this will take. 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 Herman