Andrew Beckwith v. Norwood, Town of - Public Schools (SPR 20212286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2021 SPR21/2286 David L. Thomson Superintendent of Schools James R. Savage Educational Center 275 Prospect Street P.O. Box 67 Norwood, MA 02062 Dear Superintendent Thomson: On September 8, 2021, I received your petition on behalf of the Norwood Public Schools (School) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the School furnished a copy of their petition to the requestor, Attorney Andrew Beckwith of the Massachusetts Family Institute. Id. On August 24, 2021, Attorney Beckwith requested five cagetgories of records concerning “…sexual education or human sexuality materials implemented or maintained in the Norwood Public School District, receipts for those materials, and information on how and with which grade(s) the materials are used.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency 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 an agency's petition to allow the agency 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 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

Supt. David L. Thomson SPR21/2286 Page 2 September 15, 2021 my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In its September 8th petition, the School seeks “an extension of time to comply with the above-referenced public records request, and for permission to assess the hourly rate of $33.06 per hour to compile and reproduce the materials responsive to the request.” The School states, “[t]hese records are not available electronically. To comply with the request, Norwood must go through all of its health materials, resources and textbooks and identify the responsive materials. The only person capable of doing this is the Health and Wellness department head who does not work over the summer and who we will have to pay a contractual hourly rate to complete this request.” In addition,“[t]he majority of school district employees are ten (10) month employees who do not work over the summer. This is true of the Health and Wellness department head (Employee) capable of finding and compiling the records responsive to this request.” The School expressed that “[t]he Employee’s first day back at work

Supt. David L. Thomson SPR21/2286 Page 3 September 15, 2021 was not until today, September, 8, 2021. Even though he has returned to work, he has limited time available to work on this request during the workday because he and his colleagues are very busy starting a new school year. While always a busy time, the start to this school year - like last year - will be especially demanding given the ongoing COVID-19 pandemic and constantly changing recommendations and mandates regarding health and safety protocol.” The School posits that “[t]he Health and Wellness department head is the only person connected with the District with the requisite knowledge to review the district records and determine which are responsive to the request for records and provide the information sought by the Requestor.” The School states “…it will take 10 hours to identify and reproduce the items identified in the request. At an hourly rate of $33.06, this is an estimated total cost of $264.48 (calculated as: 8 hours x 33.06 [no charge for the first two hours]).” Conclusion In light of the above, I find the School may assess a fee for the time spent to search and segregate these requested records at $33.06 per hour. With respect to the the School’s time petition, I find the School has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the School an extension of 10 business days to furnish copies of records responsive to Attorney Beckwith’s request. See G. L. c. 66, § 10(c). To the extent possible, the School must provide responsive records on a rolling basis. Please note, Attorney Beckwith 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(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Beckwith, Esq.