Sam Whiting v. Beverly, City of - Public Schools (SPR 20251554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2025 SPR25/1554 Erin Brown Records Access Officer Beverly Public School District 70 Balch Street Beverly, MA 01915 Dear Ms. Brown: I have received the petition of Samuel J. Whiting, Esq., of the Massachusetts Family Institute, appealing the response of the Beverly Public School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2025, Attorney Whiting requested the following records for the dates March 20, 2025 to April 9, 2025: [1] Emails and communications sent between Beverly Public Schools administrators (or their designees) and BPS staff pertaining to puberty education or sex education[;] [2] Emails and communications received by Beverly Public Schools (school committee members, administration, or staff) that pertain to puberty education or sex education, or contain any of the following [six identified] terms … and any responses to or forwards of these emails[;] [3] Emails and communications that contain [an identified URL][.] On May 6, 2025, Attorney Whiting amended Item 2 of his request to include only four search terms. Prior Petition This request was the subject of a prior fee petition. See SPR25/1009 Determination of the Supervisor of Records (April 16, 2025). In my April 16th determination, I found that the District had met its burden to assess a fee of $75.00 per hour for attorney review of the responsive records. I further found that the District was permitted to assess a fee for the segregation and redaction of exempt material. 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

Erin Brown SPR25/1554 Page 2 June 17, 2025 The District responded on April 28, April 30, and May 12, 2025. Unsatisfied with the responses, Attorney Whiting petitioned this office and this appeal, SPR25/1554, was opened as a result. 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). The District’s Responses In its April 28, 2025 response, the District assessed a fee of $484,950.00 to provide Attorney Whiting with responsive records. In its April 30, 2025 response, the District assessed a fee of $3,350.00 to provide Attorney Whiting with responsive records. The District stated that it would be reviewing responsive records under the attorney-client privilege, the Family Educational Rights and Privacy Act as it operates through Exemption (a) of the Public Records Law, and Exemption (c) of the Public Records Law. The District estimated that it would require “… an average of one minute to review and redact each page.” In its May 12, 2025 response, the District assessed a fee of $250.00 to provide an estimated 250 responsive records. The District detailed its fee estimate as follows:

Erin Brown SPR25/1554 Page 3 June 17, 2025 Item Estimated Rate Estimated Time Cost Review and 4 hours $25.00 per hour $100.00 compilation time Segregation and 4 hours $75.00 per hour $300.00 redaction time Credit for first two 2 hours $75.00 per hour $150.00 hours Total estimated cost 6 hours $250.00 Although the District has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 8 total hours of employee time, the District has not provided sufficient explanation of why this amount of employee time is necessary. Specifically, the District must clarify how much time it requires to compile responsive records, and how much time it requires to review, segregate, and redact responsive records. Additionally, where the District has previously estimated that it will require an average of 1 minute per page to prepare the responsive records for production, and its May 12th response allots approximately two minutes for the compilation, review, segregation, and redaction of each responsive record, the District must clarify this discrepancy. Further, the District must clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to review and compile the requested records. For the reasons discussed above, I find the District must revise its fee estimate or provide further explanation of how the fee of $250.00 assessed in its May 12, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Attorney Whiting and the District to communicate further in order 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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the District 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 ten 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. Attorney Whiting may appeal the substantive nature of the District’s response within ninety days. See 950 C.M.R. 32.08(1).

Erin Brown SPR25/1554 Page 4 June 17, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Samuel J. Whiting, Esq.