Pamela Ahern v. Natick, Town of - Public Schools (SPR 20240174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0174 Timothy M. Luff Deputy Superintendent Natick Public Schools 13 East Central Street Natick, MA 01760 Dear Deputy Superintendent 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.” Prior Appeal and Reconsideration This request was the subject of a prior appeal and subsequent reconsideration. See SPR23/2916 Determinations of the Supervisor of Records (December 14, 2023 and January 9, 2024). In my January 9th determination, I declined to reverse my December 14th determination that the School must revise its fee estimate or provide further explanation of how the fee assessed was consistent with G. L. c. 66, § 10(d). The School responded on January 19, 2024, providing a fee estimate. Unsatisfied with the response, Ms. Ahern petitioned this office and this appeal, SPR24/0174, 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). 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

Deputy Superintendent Timothy M. Luff SPR24/0174 Page 2 February 2, 2024 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 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 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 January 19th Fee Estimate In its January 19th response, the School provided a fee estimate of $22,997.00. The School asserted: Natick Public Schools contends that the hours involved in such a search are unchanged based on this request, as it continues to require and audit of each of our 100 elementary school classrooms to identify the material requested. There are no syllabi nor is there any direct instruction at the elementary level related to the topics requested that makes these materials easily identifiable for production as requested. Rather, the elementary teachers utilize thousands of materials that can be used by students in each classroom that may focus on direct instruction in reading, math social skills, social studies, science, and more. Each of these

Deputy Superintendent Timothy M. Luff SPR24/0174 Page 3 February 2, 2024 materials may make reference to the content requested. Each individual classroom teacher has the authority to utilize materials based on school district policy IJ – Instructional Materials… Therefore, each elementary classroom has different materials based upon the professional staff at the school system. To find a children’s book that may broach the topic of gender identity, or to locate a webpage that has any reference to the same, is akin to finding a needle in a haystack… to reiterate, the district does not have a catalogue of such materials for each classroom outside of the complete library book orders we provided to [Ms. Ahern] from 2017 to the present. Therefore, to complete [Ms. Ahern’s] search, school staff would have to touch each and every material used in each and every classroom to identify such topics that [Ms. Ahern is] requesting. Requesting teachers to “self report” would still require an audit of their own classroom and would remove them from their students, causing an unreasonable impact on direct student instruction. Given the current political climate… such a request would further have a chilling effect on the teachers. There are already teachers who are finding their materials posted on Facebook or other social media with derogatory and hateful comments made about them personally, as well as a public request from your organization to have members of the public, and even students, take pictures of such materials in their classrooms. This request is not reasonable for those reasons. With that being said, [the School] believes the time estimate originally established is reasonable at 20 hours for a search for each of the 100 elementary classrooms; however, the district is willing, in the interest of collaboration with [Ms. Ahern], to reduce the cost by 50%, and to waive all additional fees. The School broke down its fee estimate as follows: Search time: 2000 hours Redaction Time: Unknown (Waived) Production Time: Unknown (Waived) Total Time: 2000 hours Total time charged: 1998 (-2) Hours Cost per hour: $23.02 (Based on lowest hourly rate of library media specialist) Total Cost: $45,994 Total Charge after 50% Reduction: $22,997 Current Appeal In her appeal, Ms. Ahern asserts, “I’d like to continue to appeal this process and am wondering how the State can enforce the school district to work with me to get the materials I requested in an affordable and efficient manner. Clearly, the school is not following the recommendations of the State, since $22K is not affordable and although I made reasonable

Deputy Superintendent Timothy M. Luff SPR24/0174 Page 4 February 2, 2024 suggestions for how to provide these materials efficiently, the school district still isn’t cooperating. Teachers can self-report outside of classroom instruction hours, such as after dismissal but before they leave for the day, which doesn’t take away from instruction time… I can suggest a revised response that narrows the scope with the same parameters for all materials but for just Memorial Elementary School (one school), which I expect will be free of charge.” Although the School has estimated in its January 19th response that it will take 2,000 hours to search for the records, it remains unclear how the School requires this many hours to search for the responsive records. As such, the School must provide additional information regarding the tasks involved in searching for these records. 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 January 19th estimate is consistent with G. L. c. 66, § 10(d). Please be advised that the School cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Modification In her appeal, Ms. Ahern stated, “I can suggest a revised response that narrows the scope with the same parameters for all materials but for just Memorial Elementary School (one school)…” In light of the above modification, this office encourages Ms. Ahern and the School to communicate in order to facilitate producing records efficiently and affordably. 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). 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.

Deputy Superintendent Timothy M. Luff SPR24/0174 Page 5 February 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Pamela Ahern