Colman Herman v. University of Massachusetts - Medical School (SPR 20231537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2023 SPR23/1537 Laura Harris, Esq. Legal Associate Office of Management University of Massachusetts Chan Medical School 55 Lake Avenue North Worcester, MA 01655 Dear Attorney Harris: I have received the petition of Colman Herman appealing the response of the University of Massachusetts Chan Medical School (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 25, 2023, Mr. Herman requested “copies of any and all sponsored research agreements executed by the University of Massachusetts Medical School” and “copies of any and all licensing agreements executed by the University of Massachusetts Medical School.” On June 6, 2023, Mr. Herman narrowed his requests to “current sponsored research agreements with the federal government,” and “current licensing agreements.” Previous Appeals This request was the subject of previous appeals. See SPR23/1325 Determination of the Supervisor of Records and SPR23/1328 Determination of the Supervisor of Records (June 30, 2023). In my June 30th determination, I closed SPR23/1325 and SPR23/1329 in light of Mr. Herman further narrowing the scope of his request, and the University providing a supplemental response on June 23, 2023. Unsatisfied with the University’s response, and objecting to the University’s June 8, 2023 fee estimate, Mr. Herman further appealed, and this case was 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 agency or 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

Laura Harris, Esq. SPR23/1537 Page 2 July 18, 2023 municipality 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. Att’y 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 - 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). 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). Current Appeal In his appeal petition, Mr. Herman contends that “the documents that were provided to [him] by UMass Medical School do not give any information about the nature of the research.” Referring to the University’s June 8, 2023 fee estimate, he further contends “that the total fee of $31,599 is, in a word, outrageous, particularly given that the responsive records are stored in chaotic fashion, and moreover, the school cannot charge ... for segregation and/or redaction unless the law allows it or [the Supervisor of Records] approve it.”

Laura Harris, Esq. SPR23/1537 Page 3 July 18, 2023 The University’s June 8th Fee Estimate In its June 8, 2023 response, the University provides two separate fee estimates totaling $31,600. In regard to the request for “current sponsored research agreements with the federal government,” the University explains “that this request would result in 478 active awards, some of which are in analog form and would require extensive time to search for, locate, and compile.” The University goes on to provide the following information: At this time, [the University has] made a good faith estimate of the fees necessary to search for, compile and segregate the responsive records: Search / Compile: 474 hrs at $25/hr = $11,850 (no charge for the first four (4) hours) Segregation / Redaction (req’d by law): 239 hrs. at $25/hr = $ 5,975 (As just one example, HIPAA) Total = 17,825 In regard to the request for “current licensing agreements,” the University explains “that this request would result in 380 active licensing agreements, many of which contain addenda which may not be all contained in one location and will require manual searching, matching and compiling.” The University goes on to provide the following information: At this time, [the University has] made a good faith estimate of the fees necessary to search for, compile and segregate the responsive records: Search / Compile: 466 hrs at $25/hr = $11,650 (no charge for the first four (4) hours) Segregation / Redaction (req’d by law): 23 hrs. at $25/hr = $ 2,125 (As just one example, HIPAA) Total = $ 13,775 Based on the University’s response, it is unclear why it requires the amounts of time referenced above in order to search, compile, segregate and redact the records. The University must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, as noted above, 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,

Laura Harris, Esq. SPR23/1537 Page 4 July 18, 2023 § 10(d)(iii); 950 C.M.R. 32.06(4). In this case, it is unclear why these types of records would contain information protected under Exemption (a) and HIPAA (Health Insurance Portability and Accountability Act). Accordingly, the University must provide further explanation as to whether the redactions described in the fee estimate are required by law. Further, in its response, the University has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The University must clarify this. For the reasons discussed above, I find the University must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the University is ordered to provide Mr. Herman with a response to his 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: Colman Herman