Sara Hincapie v. Bristol Community College (SPR 20250861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 3, 2025 SPR25/0861 Joyce Faria Brennan Records Access Officer Bristol Community College 777 Elsbree Street Fall River, MA 02720 Dear Ms. Brennan: On March 28, 2025, this office received your petition on behalf of Bristol Community College (College) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and 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 College furnished a copy of the petition to the requestor, Sara Hincapie. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In two separate public records requests both dated March 14, 2025, Ms. Hincapie requested thirteen categories of records “. . . related to the verification, oversight, and handling of Mental Health Counseling services at Bristol Community College (BCC). This includes the administrative handling of staff credentials, policies, investigations, and compliance with ethical and legal standards . . . [my] student records, email communications, and internal correspondence mentioning [my] name or related to specific matters [I] was involved in at Bristol Community College (BCC) . . .” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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 Faria Brennan SPR25/0861 Page 2 April 3, 2025 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the College requests “for an extension of twenty (20) business days from the receipt of payment for the fee estimate to provide a substantive response to the public records request” and provides the following information in support of its request: [A]fter review, it is clear that due to the onerous task of going through the voluminous documents, fulfilling this request will be very time consuming, especially in conjunction with the onboarding of a new president and heading into commencement season. The process will require significant time and resources to compile, review, segregate, and potentially redact the records, further adding to the workload during this transitional period. [The College] lacks the capacity to identify documents responsive to the request, review records to determine if exemptions apply, and produce the requested documents by the tenth business day following receipt, as required by law. In light of the need to collect, segregate and examine the records, as well as the capacity of the College to produce the records without an extension, the College has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The College is granted an extension of 20 business days. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that

Joyce Faria Brennan SPR25/0861 Page 3 April 3, 2025 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 understanding 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 municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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)(iii); 950 C.M.R. 32.06(4).

Joyce Faria Brennan SPR25/0861 Page 4 April 3, 2025 Petition to Assess Fees In its petition, the College requests “permission to charge for time spent segregating and/or redacting responsive records” and provides the following in support of its request: [M]s. Hincapie’s public records request includes two requests with 13 separate items, each seeking multiple documents, which could result in a voluminous number of records. [S]ome of these records may fall under M.G.L. Chapter 4, Section 7(26)(a) and M.G.L. Chapter 4, Section 7(26)(c), as well as protections under FERPA. These exemptions could apply to records containing sensitive, personal, medical, or educational information, requiring careful review to ensure lawful disclosure. In a correspondence enclosed alongside its petition, the College provides additional information in support of its request: [U]nder Exemption (c) of Massachusetts General laws Chapter 4, Section 7(26), certain personnel and medical information may be redacted or withheld to protect personal privacy. This includes any references to your disabilities, nationality, or other sensitive personal information that could be considered an unwarranted invasion of privacy . . . [s]ome internal communications, such as drafts, notes, or preliminary deliberations, may be exempt from disclosure. Therefore, any emails exchanged between staff in the Mental Health Counseling Office, Student Wellness Center, and Administration that are not part of final decisions or records will also be excluded from the release. In an email to this Division on March 28, 2025, Ms. Hincapie objects to the College’s petition for an extension of time, arguing “. . . [I] have made multiple attempts to reach Ms. Brennan via phone, all of which were ignored or avoided. Several of my follow-up emails were also left unanswered. By refusing to answer them, the College is unnecessarily inflating the scope and workload of these PRRs and then using that inflated scope to justify yet another extension – despite already having received one in October 2024 and having plenty of months to go through some of this information.” Based on the information provided in its fee petition, I find the College has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find that the College has established good cause for a time extension of 20 business days.

Joyce Faria Brennan SPR25/0861 Page 5 April 3, 2025 Additionally, I find the College has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the College may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the College to provide records in an efficient and affordable manner. Please note, Ms. Hincapie 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Sara Hincapie