Itai Vardi v. University of Massachusetts - Lowell (SPR 20213137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3137 Jonathan Strunk Records Access Officer Executive Director of Communications 600 Suffolk Street, Suite 415 Lowell, MA 01854 Dear Mr. Strunk: I have received the petition of Itai Vardi appealing the response of the University of Massachusetts – Lowell (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2021, Itai Vardi requested emails from multiple named individuals, providing specific time periods and search terms. The University responded on November 4, 2021, providing a fee estimate. Itai Vardi and the University continued to communicate to modify the scope of the request, and on November 18, 2021, the University provided a revised fee estimate. Objecting to the fees, Itai Vardi appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must 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

Jonathan Strunk SPR21/3137 Page 2 December 13, 2021 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. Fee Estimates – Agencies 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). 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 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 University’s Fee Estimate In its November 4, 2021 and November 18, 2021 fee estimates, the University provided the following two tables, totaling $1900 in fees: [For Christopher Niezrecki’s emails:] Search/Compile: 16 hours at $25/hour = $ 300.00 (no charge for first 4 hours) Segregate/Redact: 16 hours at $25/hour = $ 400.00 Total = 32 hours at $25/hour+ $700.00 [For Julie Chen and Mary Usovicz’s emails:] Search/Compile: 20 hours at $25/hour = $ 400.00 (no charge for first 4 hours) Segregate/Redact: 32 hours at $25/hour = $ 800.00 Total = 52 hours at $25/hour+ $ 1,200.00 With both fee estimate tables, the University provides the following explanation: With respect to this fee estimate note that (i) segregation and redaction review is required here pursuant to G.L. c. 7, s 7(26)(a), (ii) no fee was charged for the first four hours and

Jonathan Strunk SPR21/3137 Page 3 December 13, 2021 (iii) a rate of $25/hour was used in calculating this estimate (when calculating a fee the custodian of records may only charge the 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 in no event shall such rate exceed $25). See 950 CMR 32.07(2). In an email to Itai Vardi on November 8, 2021, the University further elaborated on its estimate by explaining the following: The request for Christopher Niezrecki’s emails yielded 285 emails, many of which contain large attachments. . . . The request for emails from Julie Chen and Mary Usovicz yielded 2,187 [later narrowed to 664] emails many of which contain large attachments. After the initial search and compilation of these records, each document must be reviewed by our human resources and compliance teams for information protected by the Family Education Rights and Privacy Act (FERPA). Based on the University’s response, it is unclear why it requires a total of 36 hours of search time and a total of 48 hours of segregation time. The University must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Itai Vardi submitted a public records request on October 19, 2021, and the University provided a fee estimate on November 4, 2021, 2021, I find it is unclear whether the University complied with G. L. c. 66, § 10(e). Specifically, the University must demonstrate whether it provided a response to Itai Vardi’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. For the reasons discussed above, I find the University must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, §§ 10(d) and 10(e). Additionally, where both parties have expressed a willingness to work together to narrow the scope of the request, this office encourages Itai Vardi 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 the records sought more efficiently and affordably).

Jonathan Strunk SPR21/3137 Page 4 December 13, 2021 Complete Copies of All Correspondence In the appeal petition, Itai Vardi indicates that a request was also submitted: for email metadata (i.e., email log) . . . as an attempt to save money and University staff time, because a review of metadata would provide a potential pathway for narrowing [the] request. This additional records request has been denied with UMass Lowell claiming that “no such document exists.” After a review of the case file, it is unclear if this additional request for either metadata or an email log was made to the University in writing. See 950 C.M.R. 32.08(1)(b) (oral request shall not be basis of an appeal). It is further unclear whether a copy of the original written request for either metadata or an email log was provided to this office. See 950 C.M.R. 32.08(1)(f)(1) (requestor shall provide to the Supervisor complete copy of the letter by which the request was made). Accordingly, I am unable to opine on the issues raised by Itai Vardi concerning the request for metadata and an email log at this time. If unresolved issues remain concerning this portion of the request, Itai Vardi may file a separate appeal with this office, including the necessary documents. Conclusion Accordingly, the University is ordered to provide Itai Vardi with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Itai Vardi