Colman Herman v. University of Massachusetts - Boston (SPR 20202123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2020 SPR20/2123 Matthew Fenlon Records Access Officer University of Massachusetts-Boston 100 Morrissey Boulevard 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested “copes of any and all documents related to” a University parking lot used by the Edward M. Kennedy Institute. The University responded on October 27, 2020 and provided a fee estimate totaling $1,025 for the production of responsive records, and indicated that such records may be redacted pursuant to Exemption (a) of the Public Records Law. Unsatisfied with the University’s fee estimate, Mr. Herman petitioned this office and this appeal, SPR20/2123, was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 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 SPR20/2123 Page 2 November 16, 2020 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); 950 C.M.R. 32.06(4). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The University’s Fee Estimate In its October 27th fee estimate, the University estimates that it will require 45 hours to produce responsive records, for a total estimated cost $1,025. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer (RAO) may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). ----- Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. In an October 27, 2020 email, the University explains that “student educational records are protected by FERPA, therefore review for any potential redactions of student educational records is necessary.” While the University may permissibly charge for time spent redacting this information, it is unclear whether all potentially responsive records will require review for this information. In its response, the University estimates that it will require 35 hours to search for responsive records, and 10 hours to review for redactions. Despite the University’s response, I find it is unclear how it arrived at these figures. For example, the University has not indicated the number of records it must search through, or how many records it expects to produce. Therefore, the University must provide additional information to support its estimate. The University must also clarify whether it has calculated the fee at the rate of the lowest-paid employee capable of performing the work. See 950 C.M.R. 32.07(2)(i). In its response, the University suggests that in order to limit the fees, Mr. Herman may wish to narrow the request to a particular date range, or for particular individuals. This office encourages Mr. Herman and the University to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(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

Matthew Fenlon SPR20/2123 Page 3 November 16, 2020 efficiently and affordably). 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 (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: Colman Herman