Eileen Hare v. UMass Chan Medical School Police Department (SPR 20250748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2025 SPR25/0748 Ryan Menard, J.D. Assistant Vice Chancellor for Management University of Massachusetts Chan Medical School Office of Management 55 Lake Avenue North Worcester, MA 01655 Dear Attorney Menard: I have received the petition of Eileen Hare 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 February 27, 2025, Ms. Hare requested “further information regarding UMass Chan’s Visitor Management procedures. Specifically, ... a documented timeline of the policy from its origination to the present, including all updates since its implementation. Additionally, please provide the rationale behind the Visitor Management policy.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0723 Determination of the Supervisor of Records (March 18, 2025). In my March 18th determination, I closed SPR25/0723 in light of the University providing Ms. Hare with a further response on March 17, 2025. Unsatisfied with the University’s response, Ms. Hare petitioned this office, and this appeal, SPR25/0748, 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). 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

Ryan Menard, J.D. SPR25/0748 Page 2 April 1, 2025 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, 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 her appeal petition, Ms. Hare contends that “rather than providing the records I have requested twice before, [the University] instead suggests a meeting.” She goes on to contend that “this response appears to be an attempt to suppress my records request and obstruct the completion of my capstone project. I respectfully urge UMass Chan to fulfill my request in good faith rather than imposing excessive fees and unnecessary barriers.” The University’s Responses and Fee Estimate In its March 17, 2025 response, the University provides a total fee estimate of $1900. In other responses on February 27, 2025 and March 19, 2025, the University provides further information concerning its fee estimate. In its March 17th response, the University provides the following fee estimate:

Ryan Menard, J.D. SPR25/0748 Page 3 April 1, 2025 At this time, we have made a good faith estimate of the fees necessary to produce the records you have requested. Search: 20 hours at $25/hour = $400 (no charge for first 4 hours) Segregate/Redaction: 60 hours at $25/hour = $1,500 Total = $1,900 If you would like to narrow this request, please contact [the University] for an updated fee estimate. Further, ... the University likely can provide access to a representative to provide you some or all of the requested information via an informal interview or meeting, in lieu of requesting records. In its February 27th response, the University explains the following: [A] phone call with [Ms. Hare] may be helpful in narrowing the scope of your request, and possibly providing you informally with some information you are seeking in lieu of public records. Otherwise, because your request is very broad, we expect that processing your request will necessitate payment of an estimated fee (no charge for the first 4 hours, $25 per hour after) prior to our search for and production of responsive records . . . Much of your request seeks information—such as your requests for a “documented timeline” and “rationale”—that likely does not currently exist in a single record. Therefore, to respond to your request will require a search through, among other files, five years of the email accounts and other documents of multiple University employees. Any responsive records would then need to be segregated and redacted (to remove information exempt from the public records law such as, e.g., personal information and personal notes of employees). In its March 19th response, the University further explains the following: In my initial response to requestor on February 27 (the same day as the request), I advised requestor that she has requested information rather than discrete records, and that the public records law does not require the creation of new records containing requested information (see attached February 27, 2025 email chain). The next day, on February 28, Catherine Dixon (cc’d, who assists with public record requests for the University’s Department of Public Safety), spoke with requestor by phone to attempt to narrow the scope of the request (as referenced in the attached February 27 email); requestor was not willing to narrow the request and understood that the breadth of the request would require payment of a fee. Prior estimating the fee, I met internally with multiple individuals who had knowledge about the development of the security procedure at issue. I was advised that the requested information—i.e., a timeline of the policy’s development and implementation, and a rationale for the procedure—were not

Ryan Menard, J.D. SPR25/0748 Page 4 April 1, 2025 contained in any specific, discrete records. Instead, the requested information would need to be found largely within 5+ years of the emails of 5-10 current and former employees, including agency leadership. This will be very time- consuming, particularly given the lack of unique search terms. Further, because the request concerns building and facility security measures, and may involve personal employee notes—exempted from disclosure pursuant to G.L. c. 4, § 7(26)(n) and (e), respectively—this will require significant time to convert emails to PDF and then redact the exempted information. Recognizing the potential burden to requestor for this estimated fee, before I conveyed same to requestor, I first confirmed internally that a University representative could instead meet with requestor and try to provide her with the requested information verbally (and, in the process, perhaps identify specific records that could be produced within the “free” first four hours of production). I understand that requestor is seeking this information for use in an academic assignment, and so I offered her this alternative as it would allow her to obtain the information she sought in a faster, more efficient, cost-free manner. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic;

Ryan Menard, J.D. SPR25/0748 Page 5 April 1, 2025 (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Ms. Hare and the University to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Hare may consider narrowing the scope of her request to enable the University to provide the records more efficiently and affordably. The University must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Ms. Hare and the University communicate further as described above, Ms. Hare may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eileen Hare