Freedom of information laws give people the right to obtain copies of public records, such as the emails of state college officials. But those officials don’t like having to turn over their emails. So when you request a copy of their emails, they will demand extortionate amounts of money to produce copies of them. They are allowed to charge the cost of duplication. In addition, if you are not a member of the press, they are usually allowed to charge the cost of employee time spent searching for the specific records you requested. But the costs of duplication basically never exceed a thousand dollars, and usually are zero, because in this day and age, they can email you the emails — which costs them nothing — rather than making photocopies of them, which consumes paper and ink. The costs of searching for records is bigger, and can amount to several thousand dollars if you demand a gigantic category of records.
But colleges will illegally demand tens of thousands of dollars in search costs for routine freedom-of-information requests that actually take at most a few hundred dollars of staff time to gather all the responsive records. They do this because they know if you sue over it, it will cost you $5,000 to $50,000 worth of attorney time to win a lawsuit against them. Some states will make the college pay all your attorneys fees if you win (like Washington State, where you can also demand $1000 or more in civil damages). But other states won’t make the college pay any of your attorneys fees even if you win (like Minnesota). And still others follow the federal approach, where a judge has discretion to award or deny your attorneys fees even if you win, under a mushy four-factor balancing test.
In Massachusetts, colleges don’t fear being sued that much, because lawsuits don’t necessarily lead to awards of attorneys fees against them, and colleges have plenty of money to burn, because Massachusetts is a wealthy state where state colleges have lots of money — they charge relatively high tuition even to state residents.
The conservative publication Campus Reform reports on a recent example of the University of Massachusetts charging an extortionate and ridiculous amount to Campus Reform, even though Campus Reform is part of the media, which Massachusetts lawmakers specifically intended to gain access to public records.
The University demanded $357,400 to turn over an employee’s emails with one other employee over a seven-month period, even though that is a shorter period that would yield fewer emails than federal agencies have turned over for nothing — for example, the U.S. Commission on Civil Rights turned over far more emails over a much longer period to the Bader Family Foundation without charging a cent, in one case after it was sued, and later on without being sued at all. The U.S. Department of Education turned over emails between the former Assistant Secretary for Civil Rights and 8 other people over a period of several years, without charging a cent (although only after it was sued by the professor who requested them).
The University of Massachusetts Dartmouth (UMass Dartmouth) recently requested $357,400 to fulfill a public records request submitted by Campus Reform in late September.
The request sought communication records between just two individuals over the course of 7 months.
“[R]ecords should include email communications from Lori Hendricks, the Director, and Greg Homol, the Fitness Center Director between January 1, 2022 and August 1, 2022,” the request specified.
Ryan Merrill, Director of Strategic Communications and Media Relations at UMass Dartmouth, wrote that the search would take “14,300 hours,” totaling $357,400.
Ken Tashjy, a Campus Reform Higher Education Fellow and lawyer familiar with Massachusetts public record law, calculated that if “UMASS searched and compiled records for 8 hours a day, it would take 1,787.50 days to reach 14,300 hours, or 4.89 years.”
Tashjy called the fee “laughable and absurd!”
“The fact that UMASS claims it will take an estimated 14,300 hours at a cost of $357,400 to ‘search and compile’ records of the electronic communications between two individuals over a 7 month period is laughable and absurd,” Tashjy said.
Campus Reform analysis also reveals that the estimated hours to fulfill the request would not just take years, but that the fee is enough to cover college expenses for several students and is more than 5 times the yearly salary of the average Massachusettsan.
UMass Dartmouth tuition is $34,001 per year for all in-state [on campus] undergraduate students, according to its website. Consequently, Campus Reform is being charged the equivalent of sending nearly three students to college from freshman year to graduation.
Or, alternatively, Campus Reform could cover the first-year cost for more than 10 students at the amount of $357,400.
The average person in Massachusetts earns $65,505 per year, according to ZipRecruiter. If the average Massachusettsan had no other expenses, it would take more than 5 years for them to pay for the request….In pursuit of working with the UMass Dartmouth office, Campus Reform refined the language of the initial request, and sent the updated language on October 20.
The refined language, sent in an email to Merrill, read, “All emails BY/FROM and BETWEEN Lori Hendricks, the Director, and Greg Homol, the Fitness Center Director between January 1, 2022 and August 1, 2022.”
Despite refining the language, UMass estimated that the search would cost “$14,200,” arguing that searching and compiling the records would now take “572 hours.”
Tashjy commented on the update, stating that the cost is still “unreasonable… [g]iven that the records are all electronically stored and could be easily identified using basic search parameters (names and dates).” … Such responses and high figures raise concerns that agency and department heads in the state of Massachusetts lack accountability and are seeking to evade their public duty.
Andrew Beckwith, President of Massachusetts Family Institute, told Campus Reform that the fees are “excessive.”
“Those fees do seem excessive and more of an intentional financial obstacle to avoid their legal obligation of transparency to the public,” he wrote.
