Sam Whiting v. Burlington, Town of - Public Schools (SPR 20252082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2025 SPR25/2082 Eric M. Conti, Ph.D. Superintendent Burlington Public School District 123 Cambridge Street Burlington, MA 01803 Dear Superintendent Conti: I have received the petition of Samuel J. Whiting, Esq., of the Massachusetts Family Institute, appealing the response of the Burlington 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). In six separate requests on June 23, 2025, Attorney Whiting requested: [1] Emails (including attachments) sent from January 1, 2025, to March 23, 2025 from Burlington Public Schools administrators to any BPS staff (including other administrators) containing the terms “YRBS” or “Youth Risk Behavior Survey.” [2] Emails (including attachments) sent from or between the John Snow Institute (JSI) or its representatives and any employee of the Burlington Public Schools between November 1, 2024, and March 28, 2025. [3] Emails (including attachments) containing the phrase “YRBS” or “JSI” sent between the Director of Health and Physical Education and the Superintendent, and/or the Director of Mental Health and the Superintendent between November 1, 2024, and March 28, 2025. This is inclusive of emails that also contain other senders or addressees, providing the emails contain the responsive terms and fall between the date parameters provided. [4] Emails (including attachments) sent from March 24, 2025, to the date of this request from Burlington Public Schools administrators to any BPS staff (including other administrators) containing the terms “YRBS” or “Youth Risk Behavior Survey.” 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

Eric M. Conti, Ph.D. SPR25/2082 Page 2 July 30, 2025 [5] Emails (including attachments) sent or received by any member of the Burlington School Committee between May 10, 2025, and date of this request regarding the Burlington Public Schools Review of 2025 Youth Risk Behavior Survey Administration Report and Recommendations by [an identified individual]. [6] Documents sufficient to show the number of students that opted out of the 2025 Youth Risk Behavior Survey. The District provided a response on July 8, 2025. Unsatisfied with the District’s response, Attorney Whiting petitioned this office and this appeal, SPR25/2082, 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 (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 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 July 8th Response In its July 8, 2025, response, the District assessed a fee of $133.00 to provide responsive records. The District stated that it planned to redact responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. The District further stated that the records likely contained material protected by “…20 U.S.C. § 1232g; 34 CFR Part 99, and state confidentiality laws.” The District detailed its assessed fee as follows: Title Hours Per Hour Cost Total Director of 2 hours (to search for and locate $25/hour $50 Operations responsive records)

Eric M. Conti, Ph.D. SPR25/2082 Page 3 July 30, 2025 Records 5.32 hours (to conduct additional $25/hour $133 Access searches and to review responsive Officer records for any attorney-client privileged material, or any material that is required by law to be redacted, before production) TOTAL 7.32 hours (excluding the first two $133 hours of search time) The District confirmed that the lowest paid employee with the skill necessary to respond to the request is compensated at a rate greater than $25.00 per hour. Although the District has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 7.32 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 many hours of search time and how many hours of segregation and redaction time it requires to produce the responsive records. The District must also provide additional information regarding the number of pages it possesses which are responsive to the request, including how many pages it possesses per email communication, including any attachments. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, it appears from the District’s response that it plans to redact the responsive records under the attorney-client privilege and Exemptions (a) and (c) of the Public Records Law. Under 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 pursuant to 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). Consequently, the District must clarify if the fee assessed includes time necessary to redact records under Exemption (c). For the reasons discussed above, I find the District must revise its fee estimate or provide further explanation of how the fee of $133.00 assessed in its July 8, 2025 estimate is consistent with G. L. c. 66, § 10(d). In his July 17, 2025 petition to this office, Attorney Whiting requested that the District be ordered to provide separate responses to each of his requests. Attorney Whiting is advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. 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

Eric M. Conti, Ph.D. SPR25/2082 Page 4 July 30, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: Samuel J. Whiting, Esq. Jessica Richardson