Matt Berg v. University of Massachusetts - Amherst (SPR 20200111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2020 SPR20/0lll Edward Blaguszewski Executive Director of Strategic Communications UMass Amherst Munson Hall Amherst, MA O1 003 Dear Mr. Blagusezewski: I have received the petition of Matt Berg of the Massachusetts Daily Collegian appealing the response of the University of Massachusetts Amherst (University) to a request for public records. G. L. c. 66, § lOA; see 950 C.M.R. 32.08(1). Specifically, Mr. Berg requested records regarding sexual assault claims and complaints made to the University. The University responded on January 13, 2020 by providing certain responsive records and indicating that it may assess a fee for producing additional records. Tlte 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, § lOA(d); 950 C.M.R. 32,03(4). "Public 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 pmiion 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Edward Blaguszewski SPR20/0l l 1 Page2 February 4, 2020 Appeal In its January 13111 response the University indicates "[y]ou have requested student education records, which are protected by the federal law Family Educational Rights and Privacy Act ('FERPA') and which are exempt from disclosure pursuant to exemption (a). You have also requested employee personnel information, the disclosure of which may constitute an unwarranted invasion of personal privacy, and which is exempt from disclosure under exemption ( c) . What we can provide is a statistical summary of such cases." You further indicate that "[f]rom a previous public records request, we do have data in hand regarding the student conduct process and sexual misconduct. Since this information is already compiled, I am providing it without charge." With respect to assessing a fee to produce records, the University explains "[c ]ompiling statistical data to fulfill your entire request is likely to take considerable time and is estimated to take more than four hours to complete. As a result, a fee of $25 per hour would be charged beyond the first four hours. Please let me know if you wish us to develop an estimate." As an alternative, you indicate that "[f]rom a previous public records inquiry, we do have similar information compiled that provides a summary of sexual harassment allegations that were addressed through the University's student conduct process, covering 2012-2018. We can provide this information to you at no charge, since it is already compiled ...." In his appeal petition Mr. Berg asserts that he seeks a waiver of fees associated with producing responsive records. He indicates, in part, that "[t]he information I seek is in the public interest because it will contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest." This appears to be the only issue raised in Mr. Berg's appeal. Fee waivers G. L. c. 66, § lO(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In light of this provision, although the Supervisor of Records (Supervisor) may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added).

Edward Blaguszewski SPR20/0111 Page 3 February 4, 2020 Although the University may elect not to waive the fee in this matter, its fee estimate must be in compliance with the Public Records Law and its Regulations. Fee estimates 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, § 1O (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 four 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 CMR 32.06(4). Please be advised, G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days" under G. L. c. 66, § lO(b). Mr. Berg and the University are encouraged to communicate in order to facilitate producing records efficiently and affordably. For example, Mr. Berg may wish to obtain the records offered by the University in its January 13th response. See G. L. c. 66, § lO(a)(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). Conclusion In the event that Mr. Berg seeks additional records and the University intends to assess a fee to provide such records, the University must establish that it complied with G. L. c. 66, § lO(e). Further, the fee estimate provided to Mr. Berg must be made in compliance with the Public Records Law and its Regulations. Mr. Berg may appeal the substantive nature of the University's response within 90 days. See 950 C.M.R. 32.08(1).

Edward Blaguszewski SPR20/0111 Page4 February 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matt Berg