Colman Herman v. University of Massachusetts - Boston (SPR 20191648)

The Commonwealth of Massachusetts . William Francis Galvin, Secretaiyof the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2019 SPR19/1648 Matthew R. Fenlon Public Records Administrator 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); and SPR19/1349 Determination of the Supervisor of Records (July 22, 2019). In my July 2211 d determination, I found that it was unclear whether the University revised its fee estimate to include only search time and redaction time pursuant to FERP A and how much time it estimates it would take to redact FERP A protected information. Accordingly, 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. 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 SPR19/1648 Page 2 August 28, 2019 Following the July 22nd determination, the University provided another response dated August 5, 2019. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPRl 9/1648, was opened as a result. 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, § 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, § lO(d)(ii); 950 C.M.R. 32.06(4). Tlte University's August 51 response " In its August 5, 2019 response, the University reiterates 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 indicates 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)." As a result, the University provided a fee estimate which is comprised of: "[s]earch: 7 hours at $25/hour = $75 (no charge for first 4 hours); [s]egregate/[r]edaction: 7 hours at $25/hour = $175; Total= $250." 111 In response to the July 22nd determination, the University explains that its June 5 estimate" ... includes only the time to search for responsive documents and to review and redact as necessary time pursuant to exemption ( a), for documents protected by FERP A. The University would withhold or redact as necessary documents exempt pursuant to exemptions ( c) and ( d), but the estimate reflects the time necessary to search for and redact only for exemption (a)." The University reiterates that it estimates " ... it will take 7 hours to redact the documents [Mr.

Matthew R. Fenlon SPR19/1648 Page 3 August 28, 2019 Herman] ha[ s] requested." In his appeal petition, Mr. Herman references a previous appeal, SPR19/0919, and claims that "I believe that Mr. Fenlon nonetheless is still attempting to charge me for records responsive to an unfulfilled previous request. ... " In SPRl 9/0919, I advised the University that "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. ... 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 reproducing records responsive to the February 13th request only." Consequently, I directed the University to demonstrate that its fee reflects the total cost of complying with this February 13th request and exclude any previous request. Based on the University's response, it appears it is still assessing a fee for search time that has already been incurred prior to Mr. Herman's modification of his request on February 13t11, 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, § lO(d) and the May 2211 d order. . 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman