Sex Education Monitor v. Belmont Public Schools (SPR 20192521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>isor of Records January 8, 2020 SPR19/2521 Janice Darias Assistant Superintendent Belmont Public Schools 644 Pleasant Street Belmont, MA 02478 Dear Ms. Darias: I have received the petition of Sex Education Monitor appealing the response of the Belmont Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Sex Education Monitor requested "a copy of [t]he sexual education curriculum used by the Town [o ]f Belmont for middle school AND high school students. If different curriculums are used, please provide ALL curriculums. Please also provide the notice send to parents regarding sexual education curriculum. I request ALL notices send to parents, in EVERY grade for the school years: 2017-2018 and 2019-2020" ( emphasis in original). The Town initially responded on December 19, 2019 by providing a fee estimate for the production of records. Fee estimates 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 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, § lO(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, § lO(d)(iv). 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

Janice Darias SPR19/2521 Page 2 January 8, 2020 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, § lO(d)(iv}. See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Appeal The School's December 19th response provides a fee estimate for the production of responsive records; specifically, the School estimates that it requires 4 hours to produce the records. I understand that on December 19th Sex Education Monitor attempted to narrow the request by indicating they seek " ... records from the school years 2017-2018 & the school years 2018-2019 & the school years 2019-2020." · In the appeal petition, Sex Education Monitor indicates they object to the 4 hour estimate and note that the School did not respond to the narrowed request. The requestor also seeks a fee waiver. Fee waivers G. L. c. 66, § lO(d)(v) provides the following with respect to waiving a fee for the production ofresponsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In light of this provision, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Fee estimate I understand that on January 2, 2020 the School provided the following information to Sex Education Monitor: Sex education is taught in five different grades (grades 5, 7, 8, 9, and 10) as pmi of courses that cover many other issues related to health and wellness. It is not a stand-alone, self-contained course. Therefore the materials have to be collected from among the many course materials, and this work must be done by the teachers who teach these courses. Their hourly pay rate is more than $25/hour, so

Janice Darias SPR19/2521 Page 3 January 8, 2020 the charge is the maximum of $25/hour. It will take four hours to collect the materials and upload them to the records request system. The requester receives two hours at no charge, and must pay $25/hour for the remaining two hours of work, for a total of $50. The School also provided this office additional information regarding the fee estimate on January 3, 2020. Despite the School's responses, I find the School must explain why 4 hours are needed to produce the records; specifically, it must describe how much time is needed to search for the records versus how much time is needed to segregate and/or redact. The parties are encouraged to communicate fu1iher to determine whether any responsive records may be provided more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Sex Education Monitor with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sex Education Monitor