Colman Herman v. University of Massachusetts - Boston (SPR 20191873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2019 SPR19/1873 Matthew R. Fenlon Public Records Officer 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 SPRlS/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/l 130 Determination of the Supervisor of Records (June 20, 2019); SPR19/1349 Determination of the Supervisor of Records (July 22, 2019); and SPRl 9/1648 Determination of the Supervisor of Records (August 28, 2019). In my August 28th determination, I found that it was unclear whether the University was still assessing a fee for search time that had already been incurred prior to Mr. Herman's modified request on February 13th. 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 Fenlon SPR19/1873 Page 2 September 27, 2019 Following the August 28111 determination, the University provided additional information regarding its fee estimate on September 12, 2019. Unsatisfied with the University's response, Mr. Herman petitioned this office and this appeal, SPRl 9/1873, 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, § 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; § 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. 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 September 12111 response In its September 12, 2019 response, the University clarified "that the good faith estimate provided on February 27 reflects the search time and potential segregation/redaction time for the present pending request, i.e., [Mr. Herman's] February 13 request." The University indicated that its November 21, 2018 fee estimate was revised on February 13, 2019. The University explained that" ... removing one individual's name from the November 21 search request and adding one additional search term from the November 21 request did not change the amount of time that [it] estimate[s] is required to search for and provide the records." The University provided the following as its current estimate of the time required to fulfill Mr. Herman's request: ."[s]earch: 7 hours at $25/hour = $75[;] [s]egregate/Redaction: 7 hours at $25/hour = $175[;] [t]otal = $250." The University reiterated that it would have to redact records pursuant to the Family Educational Rights and Privacy Act (FERPA) and Massachusetts.Fair Information Practices Act (FIPA), G. L. c. 66A, as they operate through Exemption (a), as well as Exemptions (c) and (d) of the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public

Matthew Fenlon SPR19/1373 Page 3 September 27, 2019 records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted p01iion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In his appeal petition, Mr. Colman claims that the University's response" ... is unresponsive to [the August 23th order]. For example, [the University] is still trying to charge me for past work [it] says [it] did to fulfill a previous public records request." In the August 23th determination I indicated that it was unclear if the University was still assessing a fee for search time that had already been incurred prior to Mr. Herman's modification of his request on February 13t11, See SPR19/1643. Where the University states that its current cost estimate" ... reflects the search time ... for the present pending request, i.e., [Mr. Herman's] February 13 request[,]" I find the University has established that its fee estimate does not include a fee for search time that has already been incurred. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman