Dexter Van Zile v. University of Massachusetts - Amherst (SPR 20191388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>isor ofR ecords July 29, 2019 SPR19/1388 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 UMAS S Amherst on May 5, 2019." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1146 Determination of the Supervisor of Records (Supervisor) (June 19, 2019). In my June 19th determination, I found that the University must revise its fee estimate or provide further explanation of how the fee assessed in its June 4th estimate was consistent with G. L. c. 66, § 10( d). Following the June 19th determination, the University provided a response on June 28, 2019, which provides additional information regarding its fee estimate. Objecting to an issue raised in the University's response, Mr. Van Zile petitioned this office and this appeal, SPR19/1388, 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). 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 SPRl 9/1388 Page 2 July 29, 2019 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 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 June 28th response In its June 28, 2019 response, the University states that "[i]n order to respond to the request, the University must review each email, determine what information must be redacted, and redact same." The University indicates that its" ... preliminary search utilizing the 'narrowed' search terms and time frame generated over 9,000 responsive emails." The University indicates that "[f]or the purpose of providing a good faith estimate, without reviewing every email, the University can identify certain categories of records which are included in the responsive records." The University explains that "[t]he responsive records include student education records, which are protected by the Family Educational Rights and Privacy Act (20 U.S.C. §1232g), and which are exempt from disclosure pursuant to exemption (a). The records also include information which is exempt from disclosure pursuant to exemption (n), relating to the plans, policies, procedures, security measures, and emergency preparedness which, ifreleased, would likely jeopardize public safety for future events at the University. There is a strong public interest in maintaining the safety of the campus, and such interest is paramount to any public interest in disclosure." The University posits that" ... to limit cost, [it] intends to review and redact records simultaneously, and estimated that each of the 9,000 responsive records would take approximately two (2) minutes to review and redact. The employee who would need to complete the review and redaction is the employee whose emails were sought." The University fmiher explains that "[w]hile this employee's standard hourly rate exceeds the statutorily permissible $25.00/hour, the University's fee estimate below is based upon $25.00/hour after the first four (4) hours of work. The University's fee estimate does not include a cost for photocopying ($0.05/page), as [Mr. Van Zile] ha[s] requested the records in an electronic format." The University states that "[c Jonsistent with G.L. c. 66 § 10( d)(ii), to the extent the responsive records contain student education records, redaction of the records is required pursuant to the Family Educational Rights and Privacy Act (20 U.S.C. §1232g). The estimate of two (2) minutes per record accounts for the review and redaction of information as required by law (FERP A). Accordingly, it is the University's understanding that no separate approval by the Supervisor of Records based on a petition is required for the fee assessed. To the extent the University redacts information pursuant to exemption (n), such redaction shall be completed

Christine M. Wilda SPR19/1388 Page 3 July 29, 2019 within the two (2) minute/record estimate for review and redaction pursuant to exemption (a) - FERP A." The University indicates that its fee estimate is as follows: "Segregate/Redact: 300 hours at $25/hour = $7 ,500[;] No charge for first 4 employee hours = -$100[;] Total = $7,400.00." The University advises that in order to provide records in an efficient and affordable manner, Mr. Van Zile may further narrow his request" ... by providing fewer key search terms, further limiting the dates within which [Mr. Van Zile] seek[s] records, or identifying specific information that [he is] looking for." Current appeal In its response, the University states that "[t]he employee who would need to complete the review and redaction is the employee whose emails were sought." As such, Mr. Van Zile requests that the Supervisor rule on this issue. Mr. Van Zile " ... ask[ s] that the emails be selected, reviewed, and redacted by someone outside of the Department of Communications at the [University] and that the person( s) responsible for this task have no connection, professional or otherwise, to [the identified employee], whose emails are the subject of the request ... "Mr.Van Zile asserts that "[t]he employee in question ... has a clear conflict of interest ... [a nd] has very good reason to refrain from releasing emails that would serve to legitimize CAMERA's claims that his work as a scholar is unreliable. There is not mention of UMASS Amherst providing any oversight to [the identified employee's] decisions." With respect to Mr. Van Zile's concerns regarding who can redact the records, please note that you can appeal the University's redactions and exemption claims upon receipt of the responsive records. This office can then analyze the redactions to determine its compliance with the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Van Zile may appeal the substantive nature of the University's response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Dexter Van Zile