Sara Hincapie v. Bristol Community College (SPR 20243441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 8, 2025 SPR24/3441 Joyce Brennan Vice President of Marketing & Communication Bristol Community College 777 Elsbree Street Fall River, MA 02720 Dear Ms. Brennan: I have received the petition of Sara Hincapie appealing the response of the Bristol Community College (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Ms. Hincapie requested: [1.] [C]opies of the policies and procedures of the Student Wellness Center in place from 2016 to 2023, as well as the current policies in 2024[;] [2.] [F]inancial and budget records related to the funding of counseling services at the Student Wellness Center from 2016 to 2023, including any grants or government funding that supported these services[;] [3.] [J]ob descriptions or policy documents outlining licensure requirements for Senior Mental Health Counselors and other counseling staff working in the Student Wellness Center from 2000 to 2023[;] [4.] [R]ecords or reports that indicate whether insurance claims were submitted for students using counseling services at the Student Wellness Center from 2016 to 2023[;] [5.] Salaries and Benefits of Public Employees (2019–2023) - records of the salary and benefits received by [an identified individual] during the start of her employment at Bristol up until she left in 2023. - request records of the salary and benefits received by [an identified individual] during the start of his employment at Bristol up until he left in 2023. -records of the salary and benefits received by [an identified individual] during the start of her employment at Bristol up until the present in 2024[;] 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

Joyce Brennan SPR24/3441 Page 2 January 8, 2025 [6.] [O]rganizational charts or documents that outline the supervisory structure of the Student Wellness Center from 2016 to 2023, specifically indicating who supervised counselors such as [an identified individual] and other unlicensed staff such as [two identified individuals] among others. The College responded on October 25, 2024, providing a fee estimate. Objecting to the fees, Ms. Hincapie appealed, and this case, SPR24/3441, was opened as a result. Previous Petition This request was the subject of a prior time petition. See SPR24/2888 Determination of the Supervisor of Records (October 24, 2024). In my October 24th determination, I granted the College an extension of 20 business days in responding to the request. The College responded on October 25, 2024, providing a fee estimate. Objecting to the fees, Ms. Hincapie appealed, and this case, SPR24/3441, 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 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. Attorney 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,

Joyce Brennan SPR24/3441 Page 3 January 8, 2025 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). The College’s October 25th Fee Estimate In its October 25, 2024 response, the College provides a total fee estimate of $525. In the fee estimate, the College states, “[h]ourly rate of the lowest paid employee who has the necessary skill required to complete the record request. The hourly rate shall not exceed twenty- five dollars ($25) per hour and there is no charge for the first 4 hours of work.” The College also provides the chart below. Services Performed Hourly Rate # of hours including initial Total 4 hours Fee Student wellness Department $25 10 $250 Joyce Brennan, VP of $25 4 $0 Marketing / Records Access Officer | Coordinate, compile and review all materials for the request Fiscal department (#2) $25 5 $125 Human Resources (#3) $25 4 $100 SSEM, HR (6) $25 2 $50 Total [25] $525 Current Appeal In her appeal, Ms. Hincapie states: Despite my efforts to negotiate a fee reduction or waiver, the college has insisted on a fee estimate of $525, which I believe is unreasonable given the nature of my request and the provisions of Massachusetts Public Records Law…. The estimated time of 20+ hours to fulfill my request is excessive given the specific nature of my inquiries, which pertain only to the Student Wellness Center. Massachusetts law encourages public agencies to minimize fees for specific and

Joyce Brennan SPR24/3441 Page 4 January 8, 2025 focused requests, and the cited hours appear disproportionate to the actual work required. I respectfully request that the fee estimate be reduced or waived in light of the provisions of Massachusetts law. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the fee estimate Where the College provided a response within 10 business days, it is necessary to review the reasonableness of the City’s fee estimate. Although the College indicates in its fee estimate it will take 25 hours total to provide the responsive records, it is unclear from the College’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. It is also unclear how many records there are, or the number or minutes that the College must spend per page for redactions. The College must provide additional information regarding the tasks involved in producing these records. Accordingly, the College must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage Ms. Hincapie and the College to communicate further in order to facilitate producing records efficiently and affordably. Ms. Hincapie may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The College 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).

Joyce Brennan SPR24/3441 Page 5 January 8, 2025 Conclusion Accordingly, the College is ordered to provide Ms. Hincapie 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Sara Hincapie