Sam Whiting v. Burlington, Town of - Public Schools (SPR 20251588)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 18, 2025 SPR25/1588 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/District) 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 SPR25/1588 Page 2 June 18, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/1151 Determination of the Supervisor of Records (May 8, 2025). In my May 8th determination, I ordered the School to clarify how many hours it would take to produce the records, whether the School intended to make redactions required by law, and if the School charged the lowest rate for an employee capable of performing the tasks involved in producing the records. The School responded on May 22, 2025. Unsatisfied with the School’s response, and objecting to the fees, Attorney Whiting petitioned this office and this appeal, SPR25/1588, 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, “the BPS still has not provided us with the requested details that we would need in order to narrow our request, which we would gladly consider doing in good faith once more information is provided.… Because the BPS was able to locate these documents for their own purposes in a timely manner but continues to stonewall our request, and because the BPS has still not provided us the detailed information we would need to effectively narrow our request, we are forced to conclude that the BPS is not operating in good faith.”

Dr. Eric Conti SPR25/1588 Page 3 June 18, 2025 The School’s April 22nd and May 22nd Responses 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 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

Dr. Eric Conti SPR25/1588 Page 4 June 18, 2025 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. In its May 22, 2025 response, the School provided a new fee estimate of $1,072.00 and stated: The Burlington Public Schools are providing the within information in response to the above appeal seeking voluminous school records, including e-mails, that contain confidential student information, which needs to be de-identified. This good faith estimate was calculated based on the search time for IT to locate 5,146 emails regarding YRBS beginning July 1, 2024, through April 8, 2025 off the electronic servers of the District. Specifically, the calculation to gather the emails was based on 2 hours (2 free hours). It is estimated that it takes 30 seconds per page to review and redact the emails. The total came out to 42.88 hours x $25 = $1,072. The estimate was then reduced in good faith given the broad language set forth in the request and the thousands of e-mails at issue (5,146), which, after initial diligent work, contain confidential student information protected by FERPA and state student privacy regulations, that require review and redaction, pursuant to Exemption (a) of the Public Records Law, as such e-mails include student and minor information in school records. The School District will, of course, work with the requestor if a narrower time frame, custodians or additional key words are provided, but in its current form the request is voluminous, as noted above. In this case, the School has explained that it will charge for segregation and redaction of the records as required by law under Exemption (a) of the public Records Law, has explained the amount of time required to segregate and redact records, has clarified that the 42.88 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records, and confirmed that the lowest paid individual with the necessary skill is paid $25 per hour. As such, I find the School has met its burden to establish that it would take this amount of time to prepare the responsive records for production. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Where Attorney Whiting has expressed willingness to narrow his request, I encourage Attorney Whiting and the School to continue 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

Dr. Eric Conti SPR25/1588 Page 5 June 18, 2025 enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion As set forth above, I find the School has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Samuel J. Whiting, Esq.