Joshua Levin v. University of Massachusetts - Boston (SPR 20252678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2025 SPR25/2678 DeWayne Lehman Director of Communications University of Massachusetts – Boston 100 Morrissey Boulevard Boston, MA 02125 Dear Mr. Lehman: I have received the petition of Joshua Levin, of The Mass Media, appealing the response of the University of Massachusetts – Boston (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 1, 2025, Mr. Levin requested “any emails, space reservation requests, budget documents and receipts relating to the ResilientMass Summit held Thursday, March 27, 2025 on the third floor of Campus Center.” On May 5, 2025, Mr. Levin modified his request as follows: [1] Please provide any emails sent or received between Dec. 1, 2024 and April 1, 2025 containing any of the following terms [:] ResilientMass[;] Pontifical Academy[;] Environmental Summit[;] Climate Resilience[;] Planetary Call to Action for Climate Change Resilience. [2] Please search for any matching emails maintained by the university sent to or received by any of the following [16 identified] individuals: [and] [a]ny individual affiliated with the source of the philanthropic funds you referred to in your previous response. On May 19, 2025, Mr. Levin further modified his request as follows: [1] Please provide an updated estimate to produce any emails sent or received between Dec. 1, 2024 and April 1, 2025 using the search criteria at the bottom of this email. Search terms: ResilientMass[;] Pontifical Academy[;] Vatican[;] Environmental Summit[;] Climate Resilience[.]” [2] Please search for any matching emails maintained by the university sent to or 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

DeWayne Lehman SPR25/2678 Page 2 September 23, 2025 received by any of the following [11 identified] individuals: [and] [a]ny individual affiliated with the source of the philanthropic funds you referred to in your previous response. Prior Appeals and Reconsideration The requested records were the subject of prior appeals and a subsequent reconsideration. See SPR25/1060 Determination of the Supervisor of Records (April 17, 2025); SPR25/1243 Determinations of the Supervisor of Records (May 19, 2025 and June 11, 2025); SPR25/2328 and Determination of the Supervisor of Records (August 25, 2025). In my August 25th determination, I found that it was unclear how UMass requires eight (8) hours to search for the responsive records. Further, I found that UMass must provide additional details regarding the tasks involved in its search process. Additionally, I find that UMass has not met its burden to explain how the indicated amount of time of 2.5 minutes, is necessary to review and/or redact each email record. On September 8, 2025, UMass provided a response. Unsatisfied with the response, Mr. Levin petitioned this office and this appeal, SPR25/2678, was opened as a result. Fee Estimate - 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 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 his September 10th appeal, Mr. Levin stated the following: The University’s response does not comply with the Supervisor’s order because it is not materially different than the previous response that ‘[a]ll communications must be reviewed per

DeWayne Lehman SPR25/2678 Page 3 September 23, 2025 the Family Educational Rights and Privacy Act (FERPA), a federal law that protects the privacy of student education records’. University’s May 21 Response ... The University’s revised response makes no attempt to justify the actual amount of time of 2.5 minutes that it claims to require to review and redact each email.” UMass’ September 8th response In its September 8, 2025 response, UMass provided additional information regarding its fee estimate and stated, “[t]he estimate of eight hours is from the superior knowledge of the IT professionals who oversee and perform such exhaustive searches like the one request for 10 university email accounts for five search terms over a four-month period.” UMass further stated with regard to the charge of 2.5 minutes to review and/or redact each email record., “[p]er the federal Family Educational Rights and Privacy Act (FERPA), and therefore exemption (a), UMass Boston is mandated to review and redact any educational records of students. An exhaustive search of 10 university email accounts for five terms over a four-month period likely will include emails with students.” In its prior response dated May 21, 2025, UMass stated, At this time, we have compiled a good faith cost estimate in response to your request. Search: 8 hours at $25/hour = $ 100 (no charge for first 4 hours) Review/redactions: 41.67 hours at $25/hour = $1041.67 (estimate based off one minute to review each email and 90 seconds for any redactions) Total: = $1041.67 (sic) Please note this is just a good faith estimate and no work has been performed yet. Because of the staff time required for this request - all of which would be done by employees at a rate of greater than $25 per hour - we cannot waive the fee estimate. If you would like the work to begin, please let me know and we will arrange for payment. If the time spent for searching and redacting to produce these records is less than the estimate, we will refund you the balance. If the time spent for searching and redacting to produce these records is greater than the estimate, we will notify you. In order to limit the fees associated with your request, I would suggest further narrowing your request by: Limiting the date range; Limiting the search terms; and Limiting the individuals[.] Regarding the Supervisor’s previous letter: We can confirm the rate of the ‘lowest paid employee who is capable of performing the task(s)’ is greater than $25 per hour. ‘The University must provide further details regarding its fee estimate, including the tasks involved, and what each task entails.’ All communications must be reviewed per the Family Educational Rights and Privacy Act (FERPA), ... Based on previous guidance we have received from the SOR, we estimate 1 minute per email to review and 1 minute 30 seconds per email for any redactions that are necessary[.] As stated in the initial estimate and again here, a request to search 10 University email accounts for five (5) terms over a four (4) month

DeWayne Lehman SPR25/2678 Page 4 September 23, 2025 period requires the assistance of University IT.” ‘I encourage Mr. Levin and the University to communicate further in order to facilitate producing records efficiently and affordably.’ The University communications team remains willing and accessible to address Media inquiries. In camera inspection In order to facilitate a determination as to the applicability of UMass’ claims to the charge of 2.5 minutes to review and/or redact each email record, UMass must provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, UMass is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay.

DeWayne Lehman SPR25/2678 Page 5 September 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joshua Levin