Commonwealth Transparency v. University of Massachusetts - Boston (SPR 20221325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2022 SPR22/1316; SPR22/1325 Matthew Fenlon Assistant Chancellor for University Relations University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petitions of Commonwealth Transparency appealing the responses of the University of Massachusetts Boston (University) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 3, 2022, Commonwealth Transparency requested: For the time period January 1, 2020 through the date you respond…please provide...: [a]ny and all documentation…which include or reference in any way the work performed by the Edward J. Collins, Jr. Center for Public Management…and/or the Malden Public Schools Superintendent Search Committee[, and;] [a]ny and all documentation regarding any candidate search(es), credentials of any candidate(s), verification of said credentials, interviews, any representations made by or between any candidates and the Edward J. Collins, Jr. Center for Public Management and any communications between Edward J. Collins, Jr. Center for Public Management and the City of Malden, Malden Public Schools, and/or the Malden Public Schools Superintendent Search Committee. The University provided a response to this request on June 3, 2022. Further, on May 17, 2022, Commonwealth Transparency requested, “any and all documentation including electronic messages…which include or reference in any way the academic, educational [and]/or professional credentials and/or licensure of [a certain individual]…” 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 Fenlon SPR22/1316; SPR22/1325 Page 2 June 15, 2022 Previous Appeal With respect to Commonwealth Transparency’s May 17th request, the records sought therein were the subject of a previous appeal. See SRP22/1173 Determination of the Supervisor of Records May 23, 2022. There, the University was ordered to provide a response to Commonwealth Transparency’s request. The University provided a fee estimate on June 7, 2022. Unsatisfied with the substantive nature of both of the University’s responses, Commonwealth Transparency petitioned this office and these appeals, SPR22/1316 and SPR22/1325, were 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 town 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. Attorney 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 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 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 (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

Matthew Fenlon SPR22/1316; SPR22/1325 Page 3 June 15, 2022 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The University’s Responses and June 7th Fee Estimate for the Requestor’s May 17th Request The University initially responded to Commonwealth Transparency’s May 17th request on May 18, 2022 by stating, “in order to give you an accurate estimate of the time required to perform this search, please first clarify and provide the exact terms you would like searched.” That same day, Commonwealth Transparency stated: We do not have any information regarding your data governance nor your retention, nor your classification policies. As such, we would not be in a position to provide specific query language or search criteria. We offer the following ideas[:] We assume you are asking for query assistance within your electronic mail system, where we would start with the two versions of the name we provided and any given names utilized by the University in her account(s), and then credentials associated with her position. That same day, the University stated, “you will need to clarify and provide the exact titles of which ‘academic, educational or/or professional credentials and/or licensure’ you want searched.” After being ordered to provide a response to Commonwealth Transparency on May 23, 2022, the University provided a fee estimate on June 7, 2022, which states in pertinent part: Because the initial request on May 17 was overly broad, each of the three additional requests would be responsive to the initial request. Therefore, each of the three additional requests must be treated as part of the initial request. At this time, UMass Boston has compiled the following good-faith estimate based on the insufficiency of the parameters offered for this request. The following estimate includes the initial request and the two additional requests made on May 18. Because the third additional request was just made on June 3, it is not included in this estimate but this estimate will be updated in a timely manner to include the work needed to add the June 3 request.

Matthew Fenlon SPR22/1316; SPR22/1325 Page 4 June 15, 2022 Search and segregating emails: 4 hours at $25/hour = $ 0 (no charge for first 4 hours) Redactions: 501 hours at $25/hour = $1250 Total: = $1250 Under the Public Records Law and its Regulations, all requests for public records must be met with a response within ten business days of receipt of the request. G.L. c. 66, § l0(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. If there are any fees associated with a response a written, itemized, good faith estimate of any fees that may be charged must be provided within ten business days. G. L. c. 66, § l0(b)(viii); see also 950 C.M.R. 32.07(2)(a)-(l). A records custodian may not charge a fee unless the custodian provides a written response in compliance with G. L. c. 66, § 10(b) within ten business days following receipt of the request. See G. L. c. 66, § 10(e). Despite the University’s initial May 18th response, I find it is unclear whether the University complied with G. L. c. 66, § 10(e). Specifically, it must demonstrate whether it provided a timely response to Commonwealth Transparency’s request that is compliant with the requirements under G.L. c. 66, § 10(b). See G. L. c. 66, § 10(b)(i)-(ix) (outlining the requirements of a records custodian's written response to a requestor). The University’s June 3rd Response to the Requestor’s June 3rd Request On June 3, 2022, the University stated, “[Your] request is an amended request to the initial request of the order from the Supervisor's determination from May 23. Therefore, the good-faith estimate for the request, including the amended request from below, will now be provided by June 17.” That same day, Commonwealth Transparency stated, “This is not an amended request, it is a new request, completely separate and unrelated.” On June 6, 2022, the University responded, “Because your initial request on May 17 was overly broad, each of the three additional requests you have made since would be responsive to the initial request…Once again, we offer you the ability to make a modification with clearer parameters including specific terms and a more precise date range or specific individuals for the email search of the requested individuals emails.”

Matthew Fenlon SPR22/1316; SPR22/1325 Page 5 June 15, 2022 Current Appeal In its current appeal, Commonwealth Transparency stated: The May 17, 2022 request was NOT ruled overly broad by the SPR in SPR 22/1173. The request from May 17, 2022 and the request of June 3, 2022 are very different, demonstrably different. A very small portion of the records responsive to the May 17th request may be responsive to the June 3rd request, however the May 17th responsive records would include 20 years of data which are still requested and necessary. The June 3, 2022 request seeks much different information for many different people than the May 17th request, many different subjects than the May 17th request and is much more broad in scope than the May 17th request. They are incomparable, much less a refinement of one or the other. Based on the above, it remains unclear if the University possesses records responsive to the June 3rd request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Conclusion With respect to the University’s fee estimate for Commonwealth Transparency’s May 17th request, the University must clarify whether its May 18th and subsequent responses met the requirements of G.L. c. 66, § 10(e). With respect to Commonwealth Transparency’s June 3rd request, the University must clarify whether it possesses responsive documents. Accordingly, the University is ordered to provide Commonwealth Transparency with a response to the requests, provided 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: Commonwealth Transparency