Miles Stern v. University of Massachusetts - Amherst (SPR 20231038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2023 SPR23/1038 Christa Wilda Associate Chancellor for Compliance UMass Amherst 340 Whitmore Building 181 President's Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Miles B. Stern, of the Massachusetts Teachers Association, appealing the response of the University of Massachusetts (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2023, Mr. Stern made three public records requests as follows: [1.] A copy of all records related to invoices and payments for legal services rendered to UMass by Mintz, Levin, Cohn, Ferris, Glovsky & Popeo [“Mintz”] from January 1, 2022, to the present. [2.] A copy of all records related to invoices and payments for legal services rendered to UMass Amherst by Mintz from January 1, 2022, to the present. A copy of all records related to invoices and payments for legal services rendered to UMass Amherst Foundation by Mintz from January 1, 2022, to the present. [3.] A copy of all records related to invoices and payments for legal services rendered to UMass Foundation by Mintz from January 1, 2022, to the present. UMass responded on May 16, 2023. Unsatisfied with the response, Mr. Stern petitioned this office and this appeal, SPR23/1038, was opened as result. Fee estimate - agencies 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

Christine Wilda SPR23/1038 Page 2 May 31, 2023 Agencies may not assess a fee for the first 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). UMass’ May 16th Fee Estimate In its May 16, 2023 response, UMass gave a fee estimate of $525.00 and stated the following: Search/Compile: 5 hours at $25/hour = $ 25 (no charge for first 4 hours) Segregate/Redact: 20 hours at $25/hour = $500 Total: 25 hours at $25/hour = $ 525 (no charge for first 4 hours In support of the fee estimate, UMass stated, “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 C.M.R. 32.07(2).” In further support of necessary redactions, UMass cited work product Exemption (d) of the Public Records Law and attorney- client privilege. Although UMass has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 25 hours of employee time, it is unclear why UMass requires this many hours to produce responsive records. It is not clear what tasks are involved to prepare responsive records for production. Further, although UMass explained that redactions are necessary, it is unclear whether UMass is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for Exemption (a) or attorney client privilege or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). For the reasons discussed above, I find UMass must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Stern and UMass to communicate further in order to facilitate producing records efficiently and affordably. Mr. Stern may wish to include applicable time periods, additional factors to enable the search to be processed such as narrowing the key words. G. L. c.

Christine Wilda SPR23/1038 Page 3 May 31, 2023 66, § l0(a)(i). UMass must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, UMass is ordered to provide Mr. Stern 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, Manza Arthur Supervisor of Records cc: Miles B. Stern