Sam Whiting v. Cambridge, City of - Office of the City Clerk (SPR 20243006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2024 SPR24/3006 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Sam Whiting, Esq. appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 6, 2024, Attorney Whiting requested the following: [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 titles 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. The City responded on September 16, 2024, providing a fee estimate. On September 23, 2024, Attorney Whiting modified his request and stated, “[a]s a good- faith effort to narrow our request, we will rescind part 3 of the request, asking for invoices related to the sex education curriculum. I am also happy to clarify that for parts 1, 2, and 5, we are seeking only records related to materials that are currently being implemented or maintained at Cambridge Public Schools.” 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

Seah Levy SPR24/3006 Page 2 November 19, 2024 The City responded on November 5, 2024, providing a fee estimate. Unsatisfied with the response, Attorney Whiting petitioned this office and this appeal, SPR24/3006, 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 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. The City’s November 5th Fee Estimate In its November 5, 2024 response, the City provided a fee estimate of $700 and stated the following: On September 16, 2024, [the City] sent [Attorney Whiting] a cost estimate, as well as a time extension response, to this request. The cost estimate was in the amount of $1,200, for a total of 50 hours, with the first two hours waived pursuant to 950 CMR 32.07(m)(1). Subsequently, we met over a Teams call to discuss [Attorney Whiting’s] request, and how we could reduce or eliminate the fees. [Attorney Whiting] additionally sent [the City] samples of responses sent to [him] by the Cities of Springfield and Lowell with regards to this request. Based on the samples provided, and discussions with the School Department, the City will limit the search to just the time and work required by the health curriculum coordinators involved in this search. Below, please find a new cost estimate for this request. …the City is entitled to assess fees for search and copying time expenses as defined in 950 CMR 32.02, based on the hourly rate of the lowest paid employee capable of performing the task or no more than twenty-five dollars ($25) per hour,

Seah Levy SPR24/3006 Page 3 November 19, 2024 and provide the requester with an estimate of fees to be incurred prior to providing the documents responsive to the public records request. The City is also entitled to assess charges for the actual cost of postage, and for copying costs at $0.05 per page. As a courtesy, the City will waive the per page cost of the first fifty pages of 8 1/2 by 11 inch or 8 1/2 by 14 inch paper. Additionally, the City breaks down its estimate as follows: Hours Department Hourly Rate Total (30) School Department $25 ($750) (2) Less hours deducted ($50) pursuant to 950 CMR 32.07(m)(1). TOTAL ($700) In an email sent to this office on November 18, 2024, subsequent to the opening of this appeal, the City stated the following: Pursuant to communications exchanged by the Requestor and the City, between September 6, 2024 and November 5, 2024, the Requestor agreed to narrow the scope of its request to Item Nos. 1, 2, and 5 (“Requested Materials”); and, Seah Levy, the City’s Public Records Access Officer, responded with the Cost Estimate, as authorized by 950 CMR 32.07. The Requestor now claims it is “entitled to receive these documents free of charge because M.G.L. c. 71, s. 32A gives members of the public a right to receive copies of all instructional materials used to teach sex education or human sexuality issues.” The Requestor relies on incorrect interpretations of 950 CMR 32.07(2)(a) and a Massachusetts Department of Elementary and Secondary Education (“DESE”) advisory opinion addressing G. L. c. 71, § 32A (“Advisory Opinion”). G.L. c. 71, § 32A requires, in part, “[t]o the extent practicable,” that schools provide reasonable access to parents, guardians, educators, school administrators, and others for inspection and review curricula and other materials used to teach human sexual education and/or human sexuality issues… … Furthermore, G. L. c. 71, § 32A explicitly states that the Requested Materials “shall be made reasonably accessible…for inspection and review.” The Advisory Opinion interprets this language to mean that “[s]chools should not restrict access unreasonably.” This language indicates that the City may restrict access to the Requested Materials, albeit only in a reasonable manner, and therefore the Requested Materials are not “freely available for public inspection.” This is an important point because 950 CMR 32.07’s provision disallowing a reasonable fee for the production of public records, by its plain language, applies only to records that are freely available. Since the Requested Materials are not freely available, the City may assess a reasonable fee for the production of the Requested

Seah Levy SPR24/3006 Page 4 November 19, 2024 Materials. Pursuant to applicable law, the City has assessed a reasonable fee for the production of the Requested Materials. The Requested Materials involve courses taught by at least 16 educators across at least 18 different schools. The number of educators and schools involved entails assembling numerous physical and digital resources and verifying that each item specifically relates to “human sexual education or human sexuality issues,” which is a time-consuming task. In fact, 30 hours is an underestimate of the actual hours that will be required to gather and reproduce all the Requested Materials. Current Appeal In his appeal, Attorney Whiting states the following: On September 16, 2024, [the City] responded to my request with a fee estimate of $1,200. I disputed this fee estimate and, following a Microsoft Teams conference with [the City], narrowed my request to include only items #1, 2, an[d] 5, covering only Cambridge Public Schools’ sex education curriculum. I then explained via email on September 26, 2024 that I was entitled to receive these documents free of charge because M.G.L. c. 71, s. 32A gives members of the public a right to receive copies of all instructional materials used to teach sex education or human sexuality issues… I received a reply today, November 5th, from [the City] assessing a fee of $700 for my narrowed request. This response did not address the fact that I am entitled by law to receive these records free of charge. I am disputing this fee estimate on the basis that 1) I am entitled to these records free of charge under M.G.L. c. 71, s. 32A and 2) even if a fee could be charged to produce these records, this fee estimate is unreasonably high. My office has made identical requests to other public schools that are equal in size or larger than Cambridge Public Schools and have received the records we requested for no charge (see email attachments to RAO Levy giving examples of this). Sex education syllabi and curricula should be readily available for teachers to produce, as required by M.G.L. c. 71, s. 32A. Under no circumstances should it require 32 hours to produce these records. 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 Attorney Whiting submitted a modified public records request on September 23, 2024, and the City provided a fee estimate on November 5, 2024, I find that it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate whether it provided a response to Attorney Whiting’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the September 23rd request.

Seah Levy SPR24/3006 Page 5 November 19, 2024 Conclusion Accordingly, the City is ordered to provide Attorney Whiting with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Mr. Whiting may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sam Whiting, Esq. Melodie Kukome