Itai Vardi v. University of Massachusetts - Lowell (SPR 20220017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2022 SPR22/0017 William Storella Records Access Officer University of Massachusetts Lowell 600 Suffolk Street, Suite 301 Lowell, MA 01854 Dear Mr. Storella: 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/3137 Supervisor of Records Determination (December 13, 2021). In my December 13th determination, I ordered the University to revise its fee estimate or provide further explanation of how the estimate was consistent with the Public Records Law. Subsequently, the University responded on December 27, 2021. Unsatisfied with the University’s response, Mr. Vardi appealed, and this case was opened as a result. 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). 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

Itai Vardi SPR22/0017 Page 2 January 18, 2022 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). Current Appeal In a January 6, 2022 email to this office and the University, Mr. Vardi argues the following: [He] sent [his] October 19th, 2021 request after business day hours and it was therefore received on Oct 20th, 2021. Yet [he] received a fee estimate 11 days later, on November 4th, 2021, and for this reason [he] should not be charged with fees. The University’s December 27th Response In its December 27, 2021 response, the University states the following: Regarding clarity surrounding the university’s compliance with M.G.L. C. 66. §10(e), [Mr. Vardi] and a representative from the university engaged in a good faith email exchange on October 21, 2021 where it was determined that [Mr. Vardi] submitted [his] request on October 20, 2021. . . . During the exchange, the university acknowledged receipt of the request and communicated to [Mr. Vardi] that it has begun working on a response. The university began processing the request on October 21, 2021 and submitted a response on November 4, 2021, ten (10) business days after correspondence and mutual acknowledgement of receipt for the request. 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).” Additionally, G. L. c. 66, § 10(b) provides in pertinent part that “the agency or municipality shall inform the requestor in writing not later than 10 business days after the initial receipt of the request for public records.” (emphasis added). In this case, where the University initially received Mr. Vardi’s request on October 20, 2021, and did not provide a good faith fee estimate until November 4, 2021, the eleventh business day, I find the University has not met its burden to demonstrate that its November 4th response was in compliance with G. L. c. 66, § 10(b). Accordingly, the University may not

Itai Vardi SPR22/0017 Page 3 January 18, 2022 charge a fee for public records under G. L. c. 66, § 10(e). This office encourages Mr. Vardi and the University to continue communicating 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). Conclusion Accordingly, the University is ordered to provide Mr. 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