Sam Whiting v. Malden, City of - Public Schools (SPR 20242699)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2024 SPR24/2699 Janell Summers Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Summers: On September 26, 2024, this office received your petition on behalf of the Malden Public Schools (School/District) seeking an extension of time and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the School furnished a copy of the petition to the requestor, Attorney Sam Whiting, of the Massachusetts Family Institute. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On July 18, 2024, Attorney Whiting requested the following: Request #1 [1.] The title, edition, and publisher for all books involving human sexual education or human sexuality issues implemented or maintained in 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 title of videos shown in class, or other curricula involving human sexual education or human sexuality issues implemented or maintained in your district; [3.] All invoices from August 2018 to 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

Janell Summers SPR24/2699 Page 2 October 2, 2024 Request #2 [1.] Policy documents addressing the ability of transgender and gender non- conforming students to: a. Use single-sex facilities at school consistent with their gender identity; b. Participate in school athletic activities and sport teams consistent with their gender identity; c. be referred to by their preferred name and pronouns; [2.] [T]he names of all individuals and organizations, other than district employees who have made presentations involving the subject of sex, sexuality, gender identity, racism, or bullying to students at any of the district schools from August 2018 to present. 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).

Janell Summers SPR24/2699 Page 3 October 2, 2024 Request for Additional Time to Produce Records In its petition, the School requests, “an additional 30 business days beyond the time specified under statute.” In support of its request the School provides the following information: Given the broad scope of the request and the volume of potentially responsive records, the District submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, the District hereby petitions for an extension of time to respond to the request, given the volume. Additionally, the employee who will perform the search and recovery has many other responsibilities which they cannot ignore. The District will be unable to complete its search for, compile and reproduction of records during normal business hours of operation without an extension. In light of the need to collect and examine the records, and 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)-(iii). The School is granted an extension of 30 business days. Petition to Assess Fees – Municipalities 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.

Janell Summers SPR24/2699 Page 4 October 2, 2024 Fee Estimates – 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 2 (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). Current Petition In its petition, the School requests “to charge a fee to search for the records sought because the time needed to search for and identify responsive records exceeds the allowed two free hours in accordance with 950 CMR 37.02(2)(m)(1).” 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 only “to charge a fee to search for the records sought” and has not requested to assess fees for segregation or redaction of the records under the various exemptions of the Public Records Law. Where the School is permitted to “assess a reasonable fee for the production of a public record,” I find it unnecessary to opine on that portion the School’s September 26th petition requesting permission to assess fees. Please note, this does not preclude the School from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above.

Janell Summers SPR24/2699 Page 5 October 2, 2024 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth James Donnelly, Esq.