Matthew Rocheleau v. Bridgewater State University - Office of the President (SPR 20210786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2021 SPR21/0786 Laura Machado Staff Associate and Public Information Officer Office of the President Bridgewater State University 131 Summer Street Bridgewater, MA 02325 Dear Ms. Machado: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Bridgewater State University (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 26, 2021, Mr. Rocheleau requested “[a]ny/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment as adjunct professors with Bridgewater State University between Jan. 1, 2015 and present.” The University provided a response on March 19, 2021, which included a fee estimate. The University provided a supplemental response on March 26, 2021. Unsatisfied with the University’s response, Mr. Rocheleau petitioned this office and SPR21/0786 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, § 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 search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be 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

Laura Machado SPR21/0786 Page 2 April 12, 2021 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). Current Appeal In its March 19, 2021 response, the University states it “… has determined that it will take a full-time employee approximately two weeks to pull, review, and consolidate 6 years’ worth of data from 2015 through the present, as per your request []. The Commonwealth’s predetermined rate is $25 per hour multiplied by 75 hours (equal to two work weeks), minus the first 4 hours which we are not allowed to charge for. This is an extensive request, but if you wish to narrow the scope of the date range, that will reduce the fee assessment.” The University’s fee estimate totals $1,775. In a supplemental response sent on March 26, 2021, the University explains “the additional request for adjunct faculty which includes reviewing a total of 402 part-time faculty records for duplication, new records and employee status in two unique databases, is approximately 8 - 10 minutes per record totaling 50 hours of work.” The University further explains “[g]iven the upgrade of one database, 18 months of data (approximately 100 of the total records) will require manual effort…estimating 15 minutes per record and totaling an additional 25 hours of work.” In his appeal, Mr. Rocheleau contends “the fee estimate lacks the detail and specificity required under the public records law…it’s unclear what task(s) are actually involved in producing these records and if/why they are necessary. It’s also unclear why these steps would take so much time per file when the records appear to be all stored digitally based upon the university’s reference in its estimate to the records being stored in ‘databases.’ It should be noted that under the public records law, agencies may not recover fees associated with record organization.” Mr. Rocheleau further contends “[t]he whole purpose of these disclosure forms and the law mandating they be filled out and released as a matter of public record is for transparency. It is a sunshine disclosure; the excessive fees being quoted defy what the Legislature intended in creating this law.” Subsequent to the opening of this appeal, the University submitted a supplemental response to this office on March 30, 2021. The University states it “does not have an automated personnel records management system for part-time employees, which include adjunct facility. The University is prepared to assign staff to undertake the manual process to comply with the [Mr. Rocheleau’s] request. However, to do so without collecting fees will adversely impact the University’s capacity to conduct its regular human resources responsibilities.”

Laura Machado SPR21/0786 Page 3 April 12, 2021 Despite its responses, the University’s fee estimate has not explained with specificity why the indicated amount of time is necessary to produce the requested records. Specifically, it is unclear why it will take the University 8 - 10 minutes to produce the 402 responsive records; and 15 minutes to produce approximately 100 responsive records. The University must also explain the task(s) necessary to produce the responsive records, as well as the time being allotted to each task. Further, the University’s estimate lacks confirmation that the hourly rate being assessed is that of the lowest paid employee with the necessary skill required to produce the responsive records. The University indicates in its response “[g]iven the upgrade of one database, 18 months of data (approximately 100 of the total records) will require manual effort …” Please be advised that the University cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of - - - - Boston, 378 Mass. 281, 289-90 (1979). This office encourages Mr. Rocheleau 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 efficiently and affordably). Any fee estimate by the University must be in compliance with this determination, the Public Records Law and its Regulations. Order Accordingly, the University is ordered to provide Mr. Rocheleau with a revised response to the request, 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: Matthew Rocheleau