Bendersky, Daniel v. Lexington, Town of - Public Schools (SPR 20260611)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 9, 2026 SPR26/0611 Julie Kaye Records Access Officer Lexington Public Schools 146 Maple Street Lexington, MA 02420 Dear Ms. Kaye: I have received the petition of Daniel Bendersky appealing the response of Lexington Public Schools (School) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Bendersky submitted the first request on December 15, 2026, and the second request on December 27, 2026. Request 1: Diamond Middle School experienced at least three Jew hate incidents in as many years (on/around October 12, 2023; January 12, 2024; and December 8, 2025). I am requesting all relevant written documentation related to these three incidents and any other such incident that may not have been publicly disclosed to the Diamond community) – redacted to comply with FERPA and/or any other privacy requirements the town and LPS may be subject to. The relevant documentation includes (but shouldn’t be limited to): - dates and times the incidents were discovered and documented by Diamond Staff - written summaries or memoranda of investigative steps taken in each of the three incidents - communications sent to staff or administrators regarding the incidents, and - policies or protocols applied in the response or in determining disciplinary or restorative actions. Request 2: [1] The incident involving alleged antisemitic graffiti in a boys’ bathroom, as referenced in the Diamond DRUM newsletter dated 23 December 2025, including 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

Julie Kaye SPR26/0611 Page 2 March 9, 2026 but not limited to: - Incident reports and documentation - Photographs of the graffiti - Investigation findings - Communications with the Lexington Police Department - Disciplinary actions taken [2] All other reported or unreported incidents of antisemitism, hate speech, or bias-motivated behavior targeting Jewish, LGBTQ, black, or other Title VI protected students or staff during the same period, including: - Student or staff complaints - Incident reports or logs - Internal investigations - Communications with parents or guardians - Communications or interventions with the Diamond student population and/or impacted communities - Educational or disciplinary interventions [3] Any records indicating patterns or trends of antisemitic behavior, including anonymous reports, counselor notes (redacted as necessary), or school climate assessments. The School responded on January 5, 2026, providing a fee estimate. The School provided a further response on January 16, 2026. Unsatisfied with the School’s responses, and objecting to the fees, Mr. Bendersky petitioned this office, and this appeal, SPR26/0611, was opened as a result. Subsequent to the opening of this appeal, on March 5, 2026, the School provided a further response. 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).

Julie Kaye SPR26/0611 Page 3 March 9, 2026 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). Current Appeal In his appeal petition, Mr. Bendersky contends: The quote I received from the RAO struck me as excessive – I’d appreciate your help in: - Assessing whether the estimate articulated in the below email exchange (and the attached original estimate) is reasonable or not, and - Whether I can avail of your services to engage with my town’s school district RAO to contain the scope of the request to contain the cost of disclosure. Subsequent to the opening of this appeal, on March 5, 2026, Mr. Bendersky further objected to the School’s fee estimate. The School’s January 5th Fee Estimate In its January 5, 2026 response, the School assessed a fee estimate of $1,150 for Mr. Bendersky’s December 15th request, and assessed a total fee estimate of $1,700 for Mr. Bendersky’s December 27th request. The School provided the following information in support of its fee estimates: As an initial matter, we are unable to respond to those aspects of your public record requests that seek attorney work product, attorney-client privileged communications, or documents exempt from disclosure due to privacy concerns, or those that would require disclosure in violation of statutory prohibitions. As a public school system, searches of our email system often yield emails related to students, so we must regularly review records to ensure that no student record information is contained within them. Information about a particular student and information which identifies or could be used to identify a specific student is exempt from public disclosure pursuant to M.G.L. c.4, §7(26)(a), . . . with the relevant statutory authority being M.G.L. c.71, §§34D and 34E, as implemented through 603 CMR 23.07(4), and the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g. In addition, information that, in conjunction with the other information provided and other information that is or has been made available publicly, would result in a “grave risk of indirect identification” of the subject and would therefore result in the disclosure of protected information, is also exempt from disclosure. See Champa v. Weston Public Schools, 473 Mass. 86 (2015).

Julie Kaye SPR26/0611 Page 4 March 9, 2026 The email search results are also likely to include and/or constitute information about employees and/or personnel matters excused from public disclosure under M.G.L. c.4, §7(26)(c) . . . . This also applies to information which, in conjunction with the other information provided and other information that is or has been made available publicly, would result in a “grave risk of indirect identification” of the subject and would, therefore, result in the disclosure of protected information. In addition, the search results may also include additional private information excused under the privacy exemption of M.G.L. c.4, §7(26)(c). . . . Given the sensitive nature of the documents requested and the potential for personal embarrassment if such information were disclosed, certain records may need to be redacted or segregated after considering this balancing test. Given the scope of your request and the nature of the effort required to respond, the District requires the clearance of your payment in full of the following reasonable fee, calculated as a good-faith fee estimate in accordance with public records law as set forth herein, before the District’s continued efforts to find, compile, segregate, and disclose responsive records. . . . Also note that a portion of the good-faith fee is for the time required for segregation, redaction, and reproduction necessary to comply with your request. . . . Given the nature of these records, we anticipate that effectively all of the segregation and redaction process will be for information that is covered by Exemption (a) and is required by law; however, to the extent there are any segregation/redactions not required by law, the District will not charge for the related segregation/redaction time. On January 16, 2026, the School provided Mr. Bendersky with a further explanation of the fee estimate: Estimate breakdown the first two hours free at a $25 hourly rate: [Request 1] is estimated at $1,150, this equals 46 hours of work[.] [Request 2, Item 1] is estimated at $300, this equals 12 hours of work[.] [Request 2, Items 2 and 3] is estimated at $1,400, this equals 56 hours of work[.] . . . In the most recent decennial U.S. Census, the Town of Lexington had a population of exceeding 20,000 and, as such, the District may charge a fee for all time involved in responding to your request after two hours. Please note that the District has already spent more than two (2) hours searching for and compiling records and providing you with this initial response as required by law. People/Staff that would be assisting with this request: [a list of identified individuals, including the Diamond Principal, Diamond Assistant Principals, Diamond Admin Assistant, Public Records Request Officer, IT, Director of IT,

Julie Kaye SPR26/0611 Page 5 March 9, 2026 and LPS Attorneys for review]. Justification for Estimate: As stated in the fee estimate that you received . . . . G. L. c. 66, § 10(e) Regarding Mr. Bendersky’s December 15th request, the School is advised that G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Subsequent to the opening of this appeal, on March 5, 2026, the School provided a supplemental response, stating: By our count, I was two business days late on responding to the December 15th request. I was five business days early in responding to Mr. Bendersky’s second public records request on December 27, 2026. On January 5, 2026, I sent Mr. Bendersky this fee estimate, covering both of these requests. These requests are substantially different, and, in hindsight, I should have separated our response to each. I will do so moving forward. Based on the School’s March 5th response, the School did not respond to Mr. Bendersky’s December 15th request under G. L. c. 66, § 10(b). Pursuant to the law, the written response must be not later than 10 business days after the initial receipt of the request for public records, made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought;

Julie Kaye SPR26/0611 Page 6 March 9, 2026 (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). The School is advised that in order to assess a fee for the records requested on December 15, 2025, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). Reasonableness of the Fee Estimate Regarding the December 27th request, although the School has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 68 hours of employee time, the School has not provided sufficient explanation of why 68 hours of employee time is necessary. 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 how the School is permitted to charge for employee time it has already spent responding to the request. The School must provide additional information regarding the tasks involved in producing these records, the tasks performed in the two hours of employee time it has already expended, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the performance of those tasks. The School must also clarify how many pages of records it possesses which are responsive to the requests. The School must also clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the total fee of $1,700 assessed in its January 5th estimate is consistent with G. L. c. 66, § 10(d).

Julie Kaye SPR26/0611 Page 7 March 9, 2026 This office encourages Mr. Bendersky and the School 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 School is ordered to provide Mr. Bendersky 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. Mr. Bendersky may further appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Daniel Bendersky