Michelle Doumani v. Newburyport, City of - Public Schools (SPR 20221546)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2022 SPR22/1546 Philip A. Littlehale Business Manager Newburyport Public Schools 70 Low Street Newburyport, MA 01950 Dear Mr. Littlehale: I have received the petition of Michelle Doumani appealing the response of the Newburyport Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2022, Ms. Doumani requested: [1] the costs incurred and copies of contracts/agreements and invoices for all Diversity, Equity and Inclusion, Social-Emotional Learning, Culturally Responsive Teaching and Curriculum Consultation entities, all for the timeframe 2021-2022: •Positive Behavior Intervention Systems (PBIS) •Michael Eatman from Culture7 Consulting •Essential Partners •Facing History and Ourselves •Teaching Tolerance •Billie Donegan •Second Step Social-Emotional Learning Program •Nora Doole [2] all professional training materials, including but not limited to handouts, transcripts, videos, power point presentations, slides, and any other training materials used for all Diversity, Equity and Inclusion, Social-Emotional Learning, Culturally Responsive Teaching and Curriculum Consultation entities, all for the timeframe 2021-2022. •Positive Behavior Intervention Systems (PBIS) •Michael Eatman from Culture7 Consulting •Essential Partners •Facing History and Ourselves •Teaching Tolerance 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

Philip A. Littlehale SPR22/1546 Page 2 July 19, 2022 •Billie Donegan •Second Step Social-Emotional Learning Program •Nora Doole •Jeff Periotti, DESE Director of Safe and Supported Schools The School provided a response on July 5, 2022. Unsatisfied with the response, Ms. Doumani petitioned this office and this appeal, SPR22/1546, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimate – 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 (two) 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, § 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

Philip A. Littlehale SPR22/1546 Page 3 July 19, 2022 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). Current Appeal In her appeal, Ms. Doumani asserts: I just received the attached ‘Response to Request for Records, dated June 16, 2022’, today, July 5, 2022. According to MGL Chapter 66, Section 10(e), ‘[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).’ A similar prohibition on charging a fee for the production of records is found at 950 CMR 32.06(2)(c). Therefore, no fee should be charged. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Doumani submitted a public records request on June 16, 2022 and the School provided a response on July 5, 2022 which included a letter dated June 30, 2022, I find it is unclear whether the School complied with G. L. c. 66, § 10(e). Specifically, the School must demonstrate whether it provided a response to Ms. Doumani’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Conclusion Accordingly, the School is ordered to provide Ms. Doumani with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Manza Arthur Supervisor of Records cc: Michelle Doumani