Michele Louro v. Salem State University (SPR 20210891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0891 Rita P. Colucci, Esq. General Counsel Salem State University 352 Lafayette Street Salem, MA 01970 Dear Attorney Colucci: I have received your petition on behalf of Salem State University (University) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the University furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On March 24, 2021, Dr. Michele Louro sent an email to the University referring to an “email to the Salem State faculty listserv, the spreadsheet ‘FY2021 Roster - Board Approved – draft’ reflects an ‘exercise’ regarding a ‘retrenchment program’ considered by the President's Executive Council (PEC) prior to their decision not to retrench faculty this spring.” In the March 24th email, Dr. Louro requested documents that “the PEC have received or reviewed in relation to this spreadsheet.” Dr. Louro listed the following documents pertaining to her request: • Memos to and/or from the PEC and/or its members pertaining to the spreadsheet, its initiation and development, and/or its contents • Executive summaries, narrative, and/or other documents pertaining to the spreadsheet, its initiation and development, and/or its contents • Slide decks, images, charts and/or other similar documents pertaining to the spreadsheet, its initiation and development, and/or its contents • A legend or key that details the meaning of each variable and label in each of the columns on each of the tabs on this spreadsheet • The minutes and notes from any and all PEC meetings at which the initiation and/or development of retrenchment scenarios were discussed, including both regular minutes and executive session notes • The minutes and notes from any and all PEC meetings at which the contents of the spreadsheet or its surrounding documents were discussed, including both regular minutes and executive session notes 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. SPR21/0891 Page 2 April 14, 2021 • Any and all emails or other communications exchanged among members of the PEC regarding the spreadsheet or and/or any of the above surrounding documents. Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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, § 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 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

Rita P. Colucci, Esq. SPR21/0891 Page 3 April 14, 2021 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 Petition In its April 7, 2021 petition, the University requests “permission to charge for segregation and redaction of public records responsive to this request.” The University indicates that the “nature of the records requested, which involve emails and other documents that contain sensitive information (most of which will fall under exemptions (c) and (d)), require that each record be carefully reviewed to ensure that production of the document is lawful.” The University states that the “number of requests being made and the amount of time that search, compilation, segregation and redaction takes, pursuant to MGL c. 66, §10(d) and 950 C.M.R. 32.07(2)(d).” The University explained it “cannot charge for the first four (4) hours of time needed to produce the records, and current estimated time is 28 hours, the current fee estimate for these records (including time to segregate and redact subject to the Supervisor of Record’s approval) is $600.00 (24 hours x $25).” The University stated “that most, if not all of the records that you have requested will fall within exemptions (c) and (d) of GL c. 4 section 7(26). The exemptions protect records that are personnel files and data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy; and intra- agency documents relating to policy positions that are being developed, respectively.” The University explains in further detail, “retrenchments have not been instituted at Salem State. Any documents that might reflect such an action, unfinalized, would fall within exemption (d) and any documents that might name any individuals would fall within exemption (c).” In light of the University’s petition, I find the University has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Therefore, the University may assess a fee for the time spent to segregate and redact these requested records. Conclusion Accordingly, I find the University has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the University may assess a fee for segregation and redaction. Please note, Dr. Louro has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c).

Rita P. Colucci, Esq. SPR21/0891 Page 4 April 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dr. Michele Louro