Sam Whiting v. Uxbridge, Town of - Public Schools (SPR 20231893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2023 SPR23/1893 Superintendent Mike Baldassarre Uxbridge Public Schools 9 North Main Street Uxbridge, MA 01569 Dear Superintendent Baldassarre: On August 15, 2023, this office received the petition of the Uxbridge Public Schools (School) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On August 4, 2023, Sam Whiting requested: [1.] The title, edition, and publisher for all books involving human sexual education or human sexuality issues implemented or maintained by your district; [2.] All videos, pamphlets, slideshows, web-based materials, teacher-generated materials, homework assignments, handouts given in class, surveys, digital documents containing URLs or titles or videos shown in class, or other curricula involving human sexual education or human sexuality issues implemented or maintained by your district; [3.] All invoices from August 2018 to the present for the purchase of resources, including printed materials, demonstrative aids, and subscriptions to online content, involving human sexual education or human sexuality issues implemented or maintained in your district; [4.] All invoices from August 2018 to present paid to Planned Parenthood; [5.] The grade and grades for which the above-referenced materials are implemented or maintained. 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

Superintendent Mike Baldassarre SPR23/1893 Page 2 August 21, 2023 Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its August 15, 2023 petition, the School asserts, “[the School] requests that it be given additional time to respond to the request given the large number of responsive records and the amount of work that [the School] will need to perform to produce the records… this instant request will take a significant amount of time to respond to given the volume of the records requested and the need for review and redaction of the responsive records… [The School] requests an additional 30 business days...” I find that in light of the capacity of the School to produce the records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the School an extension of 30 business days to furnish copies of records responsive to Mr. Whiting’s request. See G. L. c. 66, § 10(c).

Superintendent Mike Baldassarre SPR23/1893 Page 3 August 21, 2023 Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality 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 municipality 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting 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 my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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).

Superintendent Mike Baldassarre SPR23/1893 Page 4 August 21, 2023 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 August 15, 2023 petition, the School argues the following in support of its request to assess fees, “[the School] requests that you allow it to charge to search for, compile or reproduce the requested records under the Public Records Law, as well as time to segregate and redact, where necessary.” Please be advised that, under 950 C.M.R. 32.07(2)(a) “a records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection.” In contrast, 950 C.M.R. 32.06(4)(h)(1) provides that “any records access officer may petition the Supervisor to charge for time spent segregating or redacting records.” In this case, the School has requested to “charge to search for, compile or reproduce the requested records[.]” Where the School is permitted to “assess a reasonable fee for the production of a public record,” I find it is unnecessary to opine on that portion of the School’s August 15th petition requesting permission to assess fees. With regard to the School’s request to charge for “time to segregate and redact, where necessary[,]” I find the School has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the School from charging for segregation and redaction that is required by law. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the School did not meet its burden to charge for segregation and redaction that is not required by law. With respect to time, I find the School has established good cause for a time extension of 30 business days as described above. See G. L. c. 66, § 10(d)(iv). I encourage the parties to communicate further to enable the School to provide records in an efficient and affordable manner. Please note the requestor 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), l0A(c).

Superintendent Mike Baldassarre SPR23/1893 Page 5 August 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Sam Whiting