Emiliano Falcon-Morano v. Salem State University (SPR 20241553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2024 SPR24/1553 Rita P. Colucci, Esq. General Counsel Salem State University 352 Lafayette Street Salem, MA 01970 Dear Attorney Colucci: On May 21, 2024, this office received your petition on behalf of Salem State University (University) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the University furnished a copy of the petition to the requestor, Emiliano Falcon-Morano, Esq., of ACLU of Massachusetts. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On May 8, 2024, Attorney Falcon-Morano requested 15 categories of records pertaining to the surveillance of students and the use of surveillance technology to monitor students’ protests. Prior Petition This request was the subject of a prior petition. See SPR24/1474 Determination of the Supervisor of Records (May 21, 2024). In my May 21, 2024 determination, I found that the University had established good cause for a time extension of 20 business days. Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). 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

Rita P. Colucci, Esq. SPR24/1553 Page 2 May 29, 2024 The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 Petition In its May 21st petition, the University stated, “[Attorney Falcon-Morano] has requested 15 separate sets of documents, which could result in a voluminous number of records. The nature of the records requested, which involve emails and other documents that contain sensitive information, require that each record be carefully reviewed to ensure that production of the document is lawful. Having had the time to consider the nature of the documents that may be responsive to [Attorney Falcon-Morano]’s request, it is likely that many of those documents will need to be redacted or otherwise withheld from disclosure pursuant to the exemptions found in MGL c. 4, section 7(26). Given that [Attorney Falcon-Morano] has requested 15 separate sets of

Rita P. Colucci, Esq. SPR24/1553 Page 3 May 29, 2024 documents, I am estimating that it may take at least one hour to segregate documents for each request and one hour to redact documents for each request.” On May 24, 2024, subsequent to the opening of this petition, the University emailed this office, and stated the following: [The University] expect[s] that there will be records that are protected from disclosure according to the following exemptions: [1.] [Exemption (a)]. Records including information derived from external agencies may be statutorily protected from disclosure, as are any records pertaining to a student’s education record (almost all student records fall within the definition of an “education record”). [2.] [Exemption (b)]. Records regarding the internal rules and practices governing security measures may fall under this exemption. [3.] [Exemption (d)]. Given the recent activities on college campuses, as well as anticipated unrest expected in the fall due to the presidential election, this exemption may be used to protect policies and protocols currently under deliberation. [4.] [Exemption (f)]. This exemption would be relevant regarding students who may have been arrested or otherwise disciplined. [5.] [Exemption (n)]. Records pertaining to the security operations of the university are likely to be impacted by this exemption. In light of the University’s petition, I find the University has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the University may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the University is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the University to provide records in an efficient and affordable manner. See G. L. c. 66, § 10(b)(vii). Please note, Attorney Falcon-Morano has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(d)(iv)(4), l0A(c).

Rita P. Colucci, Esq. SPR24/1553 Page 4 May 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Emiliano Falcon-Morano, Esq.