Open Commonwealth v. University of Massachusetts - Boston (SPR 20221754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2022 SPR22/1754 Matthew Fenlon Assistant Chancellor for University Relations University of Massachusetts Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Fenlon: I have received the petition of Commonwealth Transparency appealing the response 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 May 17, 2022, the requestor sought, “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]…” Previous Appeals The records sought by the requestor were the subject of previous appeals. See SPR22/1498 (July 14, 2022) Determination of the Supervisor of Records; SPR22/1413 Determination of the Supervisor of Records (June 27, 2022); SPR22/1325 and SPR22/1316 Determination of the Supervisor of Records (June 15, 2022); and SPR22/1173 Determination of the Supervisor of Records (May 23, 2022). On July 26, 2022, the University provided a response. Unsatisfied with the University’s response, the requestor petitioned this office and this appeal, SPR22/1754, was opened as a result. 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). 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 SPR22/1754 Page 2 August 12, 2022 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). 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). Current Appeal In the requestor’s current appeal, the requestor is objecting to the University’s fee estimate. The University’s responses The University initially responded to the requestor’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, the requestor 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 the requestor 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

Matthew Fenlon SPR22/1754 Page 3 August 12, 2022 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. 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 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).” I find the University has not met its burden to demonstrate that its June 7, 2022 response was in compliance with G. L. c. 66, § 10(b). Further, where the requestor submitted a request on May 17, 2022, and the University did not provide a good faith estimate of fees until June 7, 2022, the fifteenth business day, I find the University has not met its burden to demonstrate that its June 7, 2022 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the University may not charge a fee for public records under G. L. c. 66, § 10(e). Conclusion Accordingly, the University is ordered to provide the requestor with a response to the request, 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, Manza Arthur Supervisor of Records cc: Commonwealth Transparency