Sam Whiting v. Burlington, Town of - Public Schools (SPR 20251151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2025 SPR25/1151 Dr. Eric Conti Superintendent of Schools Burlington Public Schools 123 Cambridge Street Burlington, MA 01803 Dear Dr. Conti: I have received the petition of Attorney Samuel J. Whiting, of the Massachusetts Family Institute, appealing the response of the Burlington Public Schools (School/BPS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 8, 2025, Attorney Whiting sought the following: I am requesting copies of the following public records pertaining to the 2025 Youth Risk Behavior Survey administered to students at Marshall Simonds Middle School and Burlington High School during the week of March 24, 2025 (henceforth referred to as the “2025 YRBS”): [1] Emails and communications sent from Burlington Public Schools administrators (or their designees) to BPS staff pertaining to the administration of the 2025 YRBS including, but not limited to, instructions to staff on how to administer the survey and lists of students opted out of the survey (with student names redacted)[;] [2] Emails received by Burlington Public Schools (school committee members, administration, or staff) from non-district email addresses concerning the 2025 YRBS, from March 6, 2025 to the date of this request[;] [3] Emails and communications between Wellness Committee members and/or Mental Health Team members concerning the 2025 YRBS[;] [4] A copy of the 2025 YRBS, as reviewed by the Wellness Committee prior to March 25, 2025. 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

Dr. Eric Conti SPR25/1151 Page 2 May 8, 2025 The School responded on April 22, 2025, providing a fee estimate. Unsatisfied with the School’s response, and objecting to the fees, Attorney Whiting petitioned this office and this appeal, SPR25/1151, was opened as a result. Fee Estimates – 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In his appeal petition, Attorney Whiting states, “this appears to be an unreasonable estimate, given that we only requested emails related to just one survey that was only given in 2025.” He further asserts that the School, “failed to indicate how many responsive records exist, so there is no way of knowing whether its estimate of the time it will take to review these records is an accurate, good-faith estimate. It is entirely unclear how the BPS determined it would take 37 hours to produce these records.” The School’s April 22nd Response In its April 22, 2025 response, the School provided a fee estimate of $875.00 and advised the following: With respect to the categories of records in your request, BPS has records responsive to your request, including curricula and other documents relative to the

Dr. Eric Conti SPR25/1151 Page 3 May 8, 2025 items sought in your request. As such, responsive records that are not subject to mandatory disclosure under the Public Records Law will be provided upon payment of applicable fees (noted below). Where permitted by law, however, such records or material contained therein may be withheld or redacted pursuant to any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege. . . . Fee Estimate It is estimated that it will cost $875 to search for and locate documents responsive to your revised request. That estimate is based upon approximately 37 hours of employee time. Because the Town of Burlington has more than 20,000 residents (the Town’s population as of the last Decennial U.S. Census was 24,498), you will not be charged for the first two hours of work associated with this request, pursuant to 950 CMR 32.07(2)(m), thus reducing the total amount of time to 35 hours. That estimated amount is broken down as follows: Employee search time: Title Hours Per Hour Cost Information Technology Staff 2 hours No cost (2 hours free) (to search for emails) Administrative Assistant to 35 hours Reduced to $25.00/hour, as Superintendent required TOTAL 37 hours $875 Please note that if there are any responsive records that do not exist in electronic format, and/or documents that may only be redacted manually and not electronically (and thus must be printed prior to redaction), copying charges will apply at the rate of $.05 per page. . . . Upon receipt of payment in the amount of $875 BPS will begin the work necessary to complete your request. It is expected that you will be provided with responsive records no later than 15 business days from receipt of payment. Please note that pursuant to 950 CMR 32.06(2)(f), you will not be provided records until all fees are paid. Once again, please be advised that the amount of the enclosed estimate is due to the magnitude of the request and the significant efforts required to locate responsive documents with, an exhaustive search of all BPS records for the categories of records being sought. If you wish to narrow or modify the time frame for your request or the items you are requesting further, BPS may be able to more efficiently and expeditiously respond. Although the School has estimated that the process of compiling, reviewing, and preparing the requested records for production requires 37 hours, it is unclear how the School

Dr. Eric Conti SPR25/1151 Page 4 May 8, 2025 requires this many hours to produce the records. Specifically, it is not clear from the School’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. It is also unclear the number of records the School is looking to redact and the number of pages there are, as well as the number of minutes that the School must spend per page for the redactions. The School must provide additional information regarding the tasks involved in the search process. Additionally, where the School indicates that intends to redact the responsive records, it must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The School must clarify this. Further, although the School indicates it will charge $25 per hour, it is unclear that this is the lowest rate for an employee capable of performing the tasks involved in producing the records. Consequently, the School must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. As such, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee to be reasonable). I encourage Attorney Whiting and the School to communicate in order to facilitate producing records efficiently and affordably. Attorney Whiting may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § 10(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Attorney Whiting with a response to his 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: Samuel J. Whiting, Esq.