Pamela Ahern v. Natick, Town of - Public Schools (SPR 20232916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 14, 2023 SPR23/2916 Timothy Luff Deputy Superintendent Natick Public Schools 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of Pamela Ahern appealing the response of the Natick 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 November 20, 2023, Ms. Ahern requested “copies of district-wide instructional materials used to teach ‘gender identity’ and ‘transgender’ concepts for Grades K-4 (elementary schools). These include book titles for assigned reading (e.g. Call Me Max), worksheets, packets, video links, textbooks, handouts, interactive tools, and anything else considered instructional material.” The School responded on December 1, 2023, providing a fee estimate. Unsatisfied with the response, Ms. Ahern petitioned this office and this appeal, SPR23/2916, 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(b)(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld 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

Timothy Luff SPR23/2916 Page 2 December 14, 2023 or redacted portion of the responsive record. 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 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. 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 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). The School’s December 1st Fee Estimate In its December 1, 2023 response, the School provided a fee estimate of $45,994.00. The School asserted: We do not keep specific records of all instructional materials in the format that you are requesting, nor are we required to keep a record in a specific format, therefore copies of worksheets, packets, video links, handouts, textbooks, and interactive tools are not able to be provided unless we were to audit each and every one of our 100 elementary classrooms, which would create a significant undue burden on the school district to complete in any timeframe. There are thousands of sets of instructional materials used in an elementary classroom each school year, and given the sheer time to search through upwards of 100,000 sets of materials for one year alone, and make copies of such materials, would . . . not

Timothy Luff SPR23/2916 Page 3 December 14, 2023 only a cause an undue burden on the staff to complete, but cause an impact on the classroom instruction for our students. Staff would be taken away from their instructional duties to complete this search and could not occur without interrupting the educational environment for our students. [A] search classroom’s materials could take upwards of 20 hours per classroom for a total of 2000 hours; and there would be an additional cost for copies that would be unknown until we are able to quantity the number of materials we have in our possession that would be responsive to your request. Our lowest paid employee that could perform these tasks, based on our contractual obligations, would be an elementary library media paraprofessional whose lowest hourly rate is $23.02. Given this rate and the number of hours, 1,998 given the first two hours are provided at no cost, a good faith estimate would be upwards of $45,994 before any copies of materials are made. Current Appeal In her appeal, Ms. Ahern asserts: [The School] indicates it would cost $45,000 to complete this request, which is absurd. We are looking to the State to help facilitate this request in a timely fashion and at no cost to taxpayers and parents. Parents should not have to pay to see public school instructional materials, nor should it be an administrative burden for the school to provide these materials/information to parents. Although the School has estimated in its December 1st response that it will take 2,000 hours to search for the records, it is unclear how the School requires this many hours to produce responsive records. As such, the School must provide additional information regarding the tasks involved in searching for these records, and why it requires 2,000 hours for these tasks. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reason discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed in its December 1st estimate is consistent with G. L. c. 66, § 10(d). I encourage Ms. Ahern and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Ahern may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(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).

Timothy Luff SPR23/2916 Page 4 December 14, 2023 Conclusion Accordingly, the School is ordered to provide Ms. Ahern 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Pamela Ahern