Sam Whiting v. Cambridge, City of - Office of the City Clerk (SPR 20243283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3283 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, 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 SPR24/3283 Page 2 December 17, 2024 Prior Appeal This request was the subject of a prior appeal. See SPR24/3006 Determination of the Supervisor of Records (November 19, 2024). In my November 19th determination, I found that 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. The City responded on December 3, 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 Fee Estimates In its prior response on November 5, 2024, 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

Seah Levy SPR24/3283 Page 3 December 17, 2024 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, 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 broke 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 its December 3rd response, the City stated the following: As an initial matter, the City notes that Requestor did not appeal the $700.00 cost, assessed for production of the public records, on the basis of noncompliance with G.L. c. 66, § 10(b). Rather, as pointed out in the City’s November 18, 2024 response to Requestor’s appeal, MFI appealed the $700.00 cost based 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”). Accordingly, the issue of noncompliance with G.L. c. 66, § 10(b) is not on appeal to the Supervisor of Public Records. Furthermore, upon information and belief, the City participated in a telephone call with Requestor, on or about October 23, 2024, regarding a further response to the Request. That communication reset the clock for responding to the Request. The City then followed-up with the November 5, 2024 response, which was within 10 business days of October 23, 2024. Therefore, the City’s response to Requestor was timely. Finally, during the course of the communications exchanged by Requestor and the City, between September 6, 2024 and November 5, 2024, Requestor expressly agreed to a response date of November 5, 2024. See Attachment A, emails dated November 5, 2024 stating that Requestor would appeal on November 6, 2024 if it did not receive a public records response by November 5, 2024. Such an extension of the statutorily mandated response deadline is allowed by the plain

Seah Levy SPR24/3283 Page 4 December 17, 2024 language of G.L. c. 66, § 10(b)(vi) (“the requestor may voluntarily agree to a response date beyond the timeframes set forth herein”). Thus, for the foregoing reasons the City complied with G.L. c. 66, § 10(b) and the City’s assessment of a reasonable fee, pursuant to G.L. c. 66, § 10(e), for the production of documents is proper and should be upheld. Current Appeal In his appeal, Attorney Whiting states the following: [T]he City’s failure to timely respond within 10 business days to MFI’s narrowed request is a legitimate basis for appeal and does constitute a waiver of the City’s right to require a fee for the production of these records under M.G.L. c. 66, § 10(e). Second, the city argues that “upon information and belief,” the City and MFI had a phone call on October 23rd “regarding a further response to the Request” which “reset the clock for responding to the Request.” But no such call ever occurred. I have checked my notes, personal phone records, and office phone records and I have no record of such a call with the City on that date. The only call I have ever had with the City was on September 26 with RAO Levy, where we discussed the City’s fee estimate. The next communication I received from the City, after multiple follow-up emails (which show that I had not received any response, via telephone or otherwise, from the City) was on November 5th, when [the City] sent me a revised fee estimate of $700.00. Even had such a phone call occurred on October 23rd, however, it is not clear why or how such a call would have “reset the clock” on the City’s response. The City never alleges that during this supposed call, MFI agreed to an extension of our deadline to respond. Finally, the City argues that MFI “expressly agreed” to a response date of November 5th, when I stated in an email to the City that I would appeal their non- response on November 6th if I had not received a reply by November 5th. But this is clearly an incorrect interpretation of my communication to the City. In my November 5th email, I stated, “I am contacting you because I have not heard back from [the City] regarding our request […] I have not received a response to date. I intend to appeal tomorrow if I do not receive a response before then.” MFI never agreed, in writing or otherwise, to an extension of the City’s statutory deadline to respond to our request. Instead, after the City had clearly exceeded its deadline to respond to our narrowed request, I contacted the City (again, after multiple follow-ups) to threaten to appeal if they did not respond. This in no way represented a voluntary extension of the City’s deadline. 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

Seah Levy SPR24/3283 Page 5 December 17, 2024 public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” I find the City has not met its burden to demonstrate that its November 5, 2024 response was in compliance with G. L. c. 66, § 10(b). Specifically, where Attorney Whiting submitted a modified request on September 23, 2024, and the City did not provide a good faith estimate of fees until November 5th, the thirtieth business day, I find the City has not met its burden to demonstrate that its November 5, 2024 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the City may not charge a fee for public records under G. L. c. 66, § 10(e). This office encourages Attorney Whiting and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 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 the 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. Attorney 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