Matthew Rocheleau v. Berkshire Community College (SPR 20210957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 29, 2021 SPR21/0957 Melissa Loiodice, JD, MSW Executive Director of Human Resources Berkshire Community College 1350 West Street Pittsfield, MA 01201 Dear Ms. Loiodice: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Berkshire Community College (College) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 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 with the Berkshire Community College between Jan. 1, 2015 and present.” The College provided a response on February 2, 2021. Unsatisfied with the College’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/0957, 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 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). 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

Melissa Loiodice, JD, MSW SPR21/0957 Page 2 April 29, 2021 The College’s February 2nd response In its February 2, 2021 response, the College stated that it provided “disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment and were employed with the Berkshire Community College full- time between Jan. 1, 2015 and present.” Mr. Rocheleau followed up with the College about providing “data for adjunct professors.” The College submitted a cost estimate on March 8, 2021, to Mr. Rocheleau. In its March 8th response, the College states under “services performed” the fee estimate totals $250.00, at a rate of $25.00 per hour for 10.00 hours, without charging for the first four (4) hours of work. Mr. Rocheleau asked the College to explain “what the 10 hours of work covers.” On March 11, 2021, the College explained that it “would require research and pulling reports to determine which employees fit into the class of people you have inquired about. Our adjuncts stay on as active employees for 2 years from their last teaching appointment. At this time, we query from our payroll system and this is not always a straight forward process given that most persons in the system have multiple records spanning many years. Once the information is kicked out, an employee must review the data to assure accuracy, which can be a time consuming process. After a final list of employees is generated, an employee must retrieve these paper documents for each employee requested. Some of these files may not be in the office, but may be in the archives. Once these documents are received, someone will scan them into an electronic file. Subsequently, these documents will be filed once again.” The College clarifies it is “not working on campus at this time, this project is even more challenging. If this work takes less time than I have estimated, you will be entitled to a refund.” In his appeal, Mr. Rocheleau states the “fee estimate lacks the detail and specificity required under the public records law. The college has not clearly explained how it is coming up with the estimate of 10 hours including a clear breakdown of what tasks of work would need to be performed and how long each task would take.” Mr. Rocheleau contends that the “college has not stated how many records it would need to review and/or how many records it expects to produce. The college has stated that some files exist only in paper form and are stored in multiple locations, but under the public records law, agencies may not recover fees associated with record organization.” Despite the March 8th cost estimate and March 11th explanation, the College 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 College 10 hours to produce the responsive records. The College must also clarify the time being allotted to each task being performed.

Melissa Loiodice, JD, MSW SPR21/0957 Page 3 April 29, 2021 Please note, a records custodian 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). Conclusion Accordingly, the College is ordered to provide Mr. Rocheleau with a 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