Norbert Tschakert v. Salem State University (SPR 20201593)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2020 SPR20/1593 Rita P. Colucci, Esq. General Counsel Salem State University Salem, MA 01970-5353 Dear Attorney Colucci: I have received the petition of Norbert Tschakert appealing the response of Salem State University (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 18, 2020, Roberta A. James, Field Representative at the Division of Higher Education and the Massachusetts Teachers Association, requested records on behalf of Mr. Tschakert. Ms. James advised the University to provide identified communications to which Mr. Tschakert was not already a party, from April 1, 2018 to June 18, 2020. On August 26, 2020, Mr. Tschakert received a response from the University, including a fee estimate for $1,125.00. Mr. Tschakert paid the fee estimate and received a production of records responsive to his request for communications and documents. After his review of the responsive records, on September 3, 2020, Mr. Tschakert petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his September 3rd petition, Mr. Tschakert objects to not being provided with the records in a timely manner. It is my understanding the records were provided to Mr. Tschakert on August 31st, after the University received his payment for the fees. Mr. Tschakert is advised that the record custodian is not required to provide records until the requestor pays the estimated fee. Mr. Tschakert also objects to not receiving some of these emails from his June 18th request, when he made is first request on May 20, 2020. He further asserts that the University has failed to accurately produce records of his June 18th request, and that he claims some of the emails are not responsive to his request. It is his contention that he was charged for the production of hundreds of emails unrelated to his request. Mr. Tschakert objects to the amount of time assessed to search for the emails and that an independent third-party should be used to conduct the search and production of 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

Rita P. Colucci, Esq. SPR20/1593 Page 2 September 21, 2020 Finally, Mr. Tschakert objects to the University’s claimed exemptions under a privacy claim. Status of the requestor While Mr. Tschakert may be the subject of the communications and/or the underlying matter, he is advised that the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In addition, the civil or administrative agency discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.”). Agency fees If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, § 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 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); see also 950 C.M.R. 32.06(4).

Rita P. Colucci, Esq. SPR20/1593 Page 3 September 21, 2020 The University’s fee estimate The University’s fee estimate is for 49 hours of time to compile the records, minus 4 hours which the University is not allowed to charge for, totaling 45 hours at $25 per hour. It is my understanding that in your June 26th response you indicated that the University is not assessing any fees for segregation or redaction of the responsive records. You state regarding segregation and redaction, “…[it] would have been significant as well over 40 hours were spent on this work.” The University’s total estimate was $1,125.00, which Mr. Tschakert paid and was provided with records. It is my understanding that a Senior Attorney in this office spoke with you about this appeal and the details regarding the University’s fee estimate. You indicated that the University will respond further regarding the fee estimate, and the other issues surrounding the records produced. Conclusion Accordingly, the University must provide Mr. Tschakert with a further response concerning the estimate and the issues he brought forth in his September 3rd letter to the Supervisor. It is my understanding that the University is in the process of drafting such a response. The University is ordered to provide Mr. Tshakert with a response in accordance with the Public Records Law and its Regulations within ten (10) 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: Norbert Tschakert