Matthew Rocheleau v. Massachusetts Bay Community College (SPR 20210962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 22, 2021 SPR21/0962 Samaria Stallings, MA, SPHR Executive Director of Human Resources and Payroll Massachusetts Bay Community College 50 Oakland Street Wellesley Hills, MA 02481 Dear Ms. Stallings: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Massachusetts Bay 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 MassBay Community College between Jan. 1, 2015 and present.” After subsequent communications where the College produced some responsive records, Mr. Rocheleau requested the “same data for adjunct professors as well…” on March 1, 2021. Previous Appeal The requested records were the subject of a previous appeal. See SPR21/0657 Determination of the Supervisor of Records (March 31, 2021). In my March 31st determination, I found the College’s fee estimate had not explained with specificity why the indicated amount of time is necessary to produce the requested records. The College was ordered to provide Mr. Rocheleau with a revised response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. The College provided said response on April 13, 2021. Unsatisfied with the College’s response, Mr. Rocheleau petitioned this office and SPR21/0962 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 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

Samaria Stallings SPR21/0962 Page 2 April 22, 2021 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). The College’s April 13th response In its April 13th response, the College states “…please find the updated fee estimate which reduced the time to review each file to 4 minutes. The estimated total has also been reduced to $491.66.” The College indicates “[t]he hourly rate for the lowest-paid person who has the necessary skills and access to the personnel files is $33.03.” The College’s fee estimate totals $491.67, at a rate of $25.00 for 19.66 hours, without charging for the first four (4) hours of work. The College explains “[i]n order to retrieve the requested information, we will physically need to review 355 personnel files to search for their respective family member disclosure form. Once the document is retrieved the information needs to be prepared by photocopy or have the data entered into a spreadsheet to submit to Matthew Rocheleau at the Boston Globe. A personnel file may have as little as 10 to as many as 80 pieces of paper in each file, which need to be reviewed to find the appropriate document.” In his appeal, Mr. Rocheleau states “[t]he Globe requests that the Supervisor order the college to: provide more detail and specificity as to how it is coming up with its fee and time estimates, including clarifying if the college can determine in a more efficient manner which employees have worked adjunct professors; and that the college be ordered to not charge fees associated with record organization, signing files in and out, creating spreadsheets that seem unnecessary, and for tasks that will only be necessary in a relatively small number of cases.” Mr. Rocheleau contends “[t]he college’s latest response fails to comply with several components of the Supervisor's order.” Further, Mr. Rocheleau contends “[t]he college said it intended to charge for time spent copying records and has calculated its estimate based upon a flawed assumption it will have to copy records for every single adjunct professor who has worked at the college during the responsive time period…[t]he college had also proposed to charge for time spent entering information -- apparently the same information that will be copied -- into spreadsheets. It's unclear to me why both steps -- copying the record and entering the information into a spreadsheet -- would be necessary…[f]inally, while the Globe's request seeks information only about adjunct professors, the college has claimed it must pull and review paper records for 355

Samaria Stallings SPR21/0962 Page 3 April 22, 2021 part-timers to determine which of them have ever served as adjunct professors. But the Globe believes the college must have some more efficient manner to determine which of the 355 part- timers have worked as adjunct professors, which would allow the college to narrow the pool of files it must pull and significantly reduce the scope of work and the fee estimate.” Despite its April 13th response, the College’s fee estimate has not explained with specificity why the indicated amount of time is necessary to produce the requested records. Specifically, it unclear why it will take the College four (4) minutes per file to produce the responsive records. The College must also clarify the time being allotted to each task. Further, the College must clarify why it is necessary to “have the data entered into a spreadsheet;” as well as address if there is a more efficient manner to determine which 355 personnel files pertain to adjunct professors. The College is reminded it 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). Order Accordingly, the College 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