Michael Vanderpool v. Fitchburg State University (SPR 20221197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2022 SPR22/1197 Matthew J. Bruun Director of Communications and Public Affairs Records Access Officer Fitchburg State University 160 Pearl Street Fitchburg, MA 01420 Dear Mr. Brunn: On May 20, 2022, this office received your petition on behalf of Fitchburg State University (University) seeking an extension of time to produce records as well as permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the University furnished a copy of this petition to the requestor, Michael Vanderpool. G. L. c. 66, § 10(d)(iv). In a letter dated May 9, 2022, Mr. Vanderpool requested eleven (11) categories of records regarding an identified Title 9 complaint. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Matthew J. Bruun SPR22/1197 Page 2 May 23, 2022 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its May 20th petition, the University states the following: Mr. Vanderpool has premised his request upon the Family Educational Rights and Privacy Act (FERPA), but upon review it seems clear that, apart from the educational records he is requesting, he is making a broader public records request under Massachusetts law… Further, while the University has asked Mr. Vanderpool to modify and/or clarify the scope of his requests, the University seeks an extension of time to locate, compile and review the records he has requested. Given the volume and nature of the records Mr. Vanderpool has requested, the University will be unable to comply with his request within the time provided by MGL c. 66, Sec. 10(b); the University accordingly seeks an extension of 20 business days from the date upon which Mr. Vanderpool modifies/clarifies his requests, or such extension of time as you may allow in the circumstances. I find in light of the need to collect and segregate the request, as well as the capacity of the University to produce the request without an extension, the University has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). Accordingly, the University is granted an extension of 20 business days. 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).

Matthew J. Bruun SPR22/1197 Page 3 May 23, 2022 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 (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).

Matthew J. Bruun SPR22/1197 Page 4 May 23, 2022 Current Petition In its May 20th petition, the University states the following: While the University has asked Mr. Vanderpool to modify his request and/or clarify its scope, as presented his request will lead to the production of a voluminous number of records, many of which may be subject to exemptions, including, but not limited to, the attorney-client privilege, pursuant to MGL c. 4, sec. 7(26)(a), which exempts records that are specifically or by necessary implication exempted from disclosure by statute; and 950 C.M.R. 32.08(2)(b)(1), pertaining to records that are the subjects of dispute in active litigation or administrative hearings. The nature of the records requested, which involve emails and other documents that contain sensitive information, requires that each record be carefully reviewed to ensure that production of the document is lawful. Given the breadth of Mr. Vanderpool’s request 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 is petitioning [the Supervisor of Records] to allow it to charge a fee for time spent segregating and redacting the requested records. Based on 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). To the extent the responsive records contain the exempt information as described above, the University may assess a fee for the segregation and redaction of such exempt material. I encourage the parties to communicate further to enable the University to provide records in an efficient and affordable manner. Please note the requestor 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Vanderpool