Kyle A. Berner v. Roxbury Community College (SPR 20250146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2025 SPR25/0146 Jordan E. Smock Records Access Officer Roxbury Community College 1234 Columbus Avenue Roxbury Crossing, MA 02120 Dear Ms. Smock: I have received the petition of Kyle A. Berner, Esq. appealing the response of the Roxbury 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 December 20, 2024, Attorney Berner requested: [A]ll documents from January 1, 2024, to August 31, 2024, including but not limited to email or other communications from then Executive Director of Human Resources … that explain, relate, concern, or refer to selection of candidates for retrenchment. This especially includes any documentation of [an identified individual] discussing the selection of [two identified individuals] for retrenchment. The College responded on January 7, 2025, confirming receipt of the request. On January 13, 2025, the College provided a fee estimate of $650.00. Unsatisfied with the response, Attorney Berner petitioned this office and this appeal, SPR25/0146, was opened as a result. Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Jordan E. Smock SPR25/0146 Page 2 January 28, 2025 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, Attorney Berner states, “the Records Access Officer for RCC, confirmed receipt of my request on January 7, 2025, and informed me that RCC intended to reply by January 14, 2025. On January 13, 2025, RCC responded demanding that I pay an estimated fee of $650 to produce the records.” The College’s January 13th Response In its January 13, 2024 response, the College states, “[o]n Tuesday, January 7, 2025, RCC responded to confirm receipt of your request and inform you that RCC’s physical campus was closed at noon on Monday, December 23, 2024 through Wednesday, January 1, 2025 for scheduled maintenance and thus, by our calculations, the College’s response would be due on or before Tuesday, January 14, 2025. I asked that you contact me if you had any questions or concerns and to date, have not received any.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Attorney Berner submitted a public records request on December 20, 2024, and the College provided a fee estimate on January 13, 2025, I find that it is unclear whether the College complied with G. L. c. 66, § 10(e). Specifically, the College must demonstrate whether it provided a response to Attorney Berner’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the December 20th request. This office encourages Attorney Berner and the College to continue to communicate to facilitate providing records more efficiently and affordably. Attorney Berner may wish to narrow the parameters or include 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).

Jordan E. Smock SPR25/0146 Page 3 January 28, 2025 Conclusion Accordingly, the College is ordered to provide Attorney Berner 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kyle A. Berner, Esq.