Ashley Ridgway v. University of Massachusetts - Amherst (SPR 20231484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2023 SPR23/1484 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340 Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Ashley Ridgway, on behalf of People of the Ethical Treatment of Animals (PETA), appealing the response of the University of Massachusetts, Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 9, 2023, PETA requested, “all veterinary records for the 16 marmoset monkeys referenced in the paper, ‘Adverse Effects of Aromatase Inhibition on the Brain and Behavior in a Nonhuman Primate,’ published in the Journal of Neuroscience in 2019” for the period from January 1, 2012 through December 31, 2015. The University provided responses from January 24 to May 5, 2023. Unsatisfied with the responses, PETA petitioned this office and this appeal, SPR23/1484, 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). 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). 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 M. Wilda SPR23/1484 Page 2 July 12, 2023 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). The University’s Responses In its January 24, 2023 response, the University provided a fee estimate of $900.00, which was paid by PETA. In its March 30, 2023 response, the University acknowledged payment of the fee estimate and provided redacted records. In response, PETA stated, “[the records] do not appear to be complete veterinary records we requested.” In its April 13, 2023 response, the University stated, “[t]he estimate was made based upon the number of records requested without knowing which specific records would be implicated… PETA has submitted multiple requests for which no payment was submitted but collectively add up to more hours than the differential in this request.” In its May 5, 2023 response, the University stated, “there were several requests in the last year that we did not individually charge a fee for but collectively add up to over 20 hours of work. The most recent request estimated a fee of 40 hours but actually resulted in about half that time given some of the records had been purged in accordance with our records retention policy.” Current Appeal In their appeal, PETA states, “[t]he University is attempting to uphold an excessive fee assessment by improperly factoring time spent responding to previous, unrelated requests PETA submitted in 2022… the University admitted that the time spent on the Request ‘actually resulted in about half’ the time reflected in its 40-hour estimate because the requested records purportedly did not exist at the time PETA made the Request… the University should be directed to reimburse PETA for fees charged that exceeded the actual cost of reproduction, or waive the fees for the Request entirely.” In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A (a). Where PETA has paid the fee estimate and been provided with responsive records, it appears that there is no violation of G. L. c. 66, § 10. Therefore, this office is unable to issue a determination at this time.

Christine M. Wilda SPR23/1484 Page 3 July 12, 2023 Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Ashley Ridgway