Colman Herman v. University of Massachusetts - Boston (SPR 20202364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2020 SPR20/2364 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. Previous Appeal This request has been the subject of a previous appeal. See SPR20/2123 Determination of the Supervisor of Records (November 16, 2020). In my November 16th determination, I found the University must provide additional information regarding how it arrived at its fee estimate. The University produced a supplemental response on November 30, 2020, providing additional information regarding its estimate. Unsatisfied with the University’s response, Mr. Herman petitioned this office and this appeal, SPR20/2364, 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). 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 SPR20/2364 Page 2 December 14, 2020 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 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). Current Appeal In its October 27th fee estimate, the University estimates that it will require 45 hours to produce responsive records, for a total estimated cost, less four hours, of $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); -se-e -a-ls-o 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 its responses, the University estimates that it will require 35 hours to search for responsive records, and 10 hours to review for redactions. In its November 30th response, the University explains that “due to the overly broad nature of your request, we would need to enlist the assistance of the UMass Boston IT Department. The UMass Boston server network contains tens of thousands of users with at least hundreds of thousands of records.” The University further explains: “[b]ecause the Edward M. Kennedy Institute for the U.S. Senate opened in 2015, we would need to search the entire UMass Boston server for a five-year period.” The University therefore states that it “expect[s] there to be thousands of responsive records that include communications with EMKI, and ones that pertain to student educational records must be reviewed and redacted as they are protected under FERPA.” 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.” To the extent that responsive records contain student record information, the University may charge for time spent redacting this information. Where such redaction is

Matthew Fenlon SPR20/2364 Page 3 December 14, 2020 required by law, the University does not require approval of a petition under G. L. c. 66, § 10(d)(iv). See 950 C.M.R. 32.07(2)(d). In light of the University’s November 30th response, I find the University has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this broad request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Modification of Request 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. Mr. Herman may also wish to identify a particular type of document for which to search. This office continues to encourage Mr. Herman and the University 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 efficiently and affordably). Any updated fee estimate by the University must be in compliance with this determination, the Public Records Law, and its Access Regulations. Conclusion As set forth above, I find the University has met its burden in responding to Mr. Herman’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman