Bendersky, Daniel v. Lexington, Town of - Public Schools (SPR 20261305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2026 SPR26/1305 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, 2025, and the second request on December 27, 2025. 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 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 SPR26/1305 Page 2 April 23, 2026 referenced in the Diamond DRUM newsletter dated 23 December 2025, including 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. On March 9, 2026, Mr. Bendersky further modified Request 2 to narrow its scope as follows: Rather than requesting the full complement of documents described in my original request, I am primarily interested in: [1] A comprehensive, redacted list or log of all reported incidents of antisemitism, hate speech, or bias-motivated behavior at Diamond Middle School during the relevant period, including any incidents that may not have been publicly disclosed to the Diamond community. [2] Internal communications among Diamond administration (including the Principal) and between Diamond administration and LPS Superintendent’s office regarding these incidents — including but not limited to emails, memoranda, and written summaries of actions taken or responses thereto. I am withdrawing my request for the following categories, which I assume may be more labor-intensive to compile and redact: - Counselor notes - Anonymous reports - School climate assessments - Photographs or other audio-visual evidence of graffiti

Julie Kaye SPR26/1305 Page 3 April 23, 2026 [3] To be clear, I would expect any other responsive records identified in the course of the search — such as incident reports, investigation findings, communications with Lexington Police, or records of disciplinary actions — to be produced as well, rather than set aside. Prior Appeal This request was the subject of a prior appeal. See SPR26/0611 Determination of the Supervisor of Records (March 9, 2026). In my March 9th determination, I determined that the School did not respond to Mr. Bendersky’s December 15th request under G. L. c. 66, § 10(b) and therefore cannot charge a fee for that request. Additionally, regarding Mr. Bendersky’s December 27th request, I ordered the School to revise or further explain its January 5, 2026 fee estimate. The School responded on March 23, 2026, providing a revised fee estimate, and further responded on April 9, 2026. Unsatisfied with the responses, Mr. Bendersky petitioned this office and this appeal, SPR26/1305, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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).

Julie Kaye SPR26/1305 Page 4 April 23, 2026 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). Current Appeal In his appeal petition, Mr. Bendersky contends: I have three concerns about this response. First, regarding search adequacy: my March 23 letter asked the School to confirm what record systems were searched beyond email. The produced records themselves contain outbound communications from Diamond staff to the Lexington Police Department and references to a Superintendent notification to the Lexington HRC, disciplinary actions, and staff meeting materials — none of which appeared in the public records production. These are records that originated within the School, not records held exclusively by other agencies. [The School’s] response does not address what systems were searched or account for these specific categories of records. The assertion that there are no additional responsive records — for either request — does not engage with these questions. Second, regarding the redaction log: every entry cites Exemption (c) with the justification “private personnel information.” My requests concerned hate incidents at the school, not personnel matters. The School’s own January 5th response emphasized FERPA and student records as the primary basis for redaction — yet the redaction log barely references student information. More importantly, there is no indication that the required balancing test under Exemption (c) was performed. The public interest in understanding how a public school responds to hate incidents is substantial, and a blanket assertion of privacy over all employee communications about those incidents does not appear to reflect that balancing. The redaction log indicates that entire emails were withheld rather than redacted at line level, without any indication that these documents contain no segregable public content. Third, and most significantly: my December 27th request was specifically prompted by an incident described in the Diamond Middle School principal’s

Julie Kaye SPR26/1305 Page 5 April 23, 2026 newsletter dated December 23, 2025. That newsletter describes another antisemitic . . . symbol found in a boys’ bathroom, an active investigation, notification of both the Superintendent and the Lexington Police Department, and disciplinary consequences for a separate related incident involving antisemitic conduct toward Jewish students. Yet the most recent record in the School’s production is dated December 17, 2025. [The School] now asserts that there are no additional responsive records for my December 27th request. I am unable to reconcile this assertion with the principal’s own public description of investigative and administrative activity that took place ostensibly after December 17. . . . Based on Mr. Bendersky’s appeal petition, he does not appear to be appealing the School’s March 23rd fee estimate. The School’s March 23rd Fee Estimate and April 9th Response In its March 23, 2026 response, the School provided redacted records responsive to Mr. Bendersky’s December 15th request, and assessed a fee estimate of $375.00 for Mr. Bendersky’s modified March 9th request. The School provided the following information in support of its fee estimate: 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. . . . 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). . . . 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). . . .

Julie Kaye SPR26/1305 Page 6 April 23, 2026 We do believe that the majority of responsive records in your first public records request may satisfy your second public records request; however, it appears that you are also asking for a “comprehensive redacted list or log of all reported incidents of antisemitism, hate speech, or bias-motivated behavior…” which will take time to complete. Given the scope of your request, the District has calculated a good-faith fee estimate of $375, based on an estimated 15 hours of staff time, broken down as follows: Task Estimated Hours Search 3 hours Segregation (review to determine what 6 hours must be redacted or withheld) Redaction 6 hours The District will not charge for any segregation or redaction time that is not legally required. The District cannot proceed with compiling, reviewing, or disclosing responsive records until payment is received in full. . . . 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. . . . Yes, the District has used the two hours of employee time permissible under the law in working with the Tech Department and the Principal to identify the potentially responsive records. There are 101 pages of records now in possession which are responsive to the requests. . . . In its April 9, 2026 response, the School provided a “redaction log” and cited Exemption (c) of the Public Records Law to redact and withhold responsive records. The School also stated the following: The records produced to you constitute the total record production in response to your December 15, 2025 public records request. Certain records were not produced to you that are exempt from disclosure. Please find attached a redaction log for your December 15, 2025 request. The district does not have any further narrative or documentation to provide relating to your December 15 request. In regards to the December 27, 2025 request, as revised on March 9, 2026, the district can confirm that there are no additional responsive records beyond that

Julie Kaye SPR26/1305 Page 7 April 23, 2026 which has already been produced to you, now that I have provided you a copy of the redaction log effective today. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). First Clause – Personnel Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1)

Julie Kaye SPR26/1305 Page 8 April 23, 2026 whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its April 9th response, under Exemption (c), the School provided a “redaction log” that describes the “Document[,]” the “Applicable Exemption(s)[,]” and the “Reason[.]” In its redaction log, in every row of the “Applicable Exemption(s)” column, the School states “Exemption (c) Privacy Interest[.]” The School repeatedly states “[p]rivate personnel information” as the reason for redacting. Based on the School’s response, it is unclear how the redacted information and withheld records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is also not clear how the redacted information and withheld records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the redacted or withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the School did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The School must clarify these matters. Additionally, the School must clarify how the withheld responsive records can be withheld in their entirety and why segregable portions cannot be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, based on the School’s response, it is unclear which responsive records were entirely withheld from disclosure. G. L. c. 66, § 10(b)(iv) (a written response must “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 . . .”). Therefore, the School must identify the records it has in its possession that it is withholding under Exemption (c).

Julie Kaye SPR26/1305 Page 9 April 23, 2026 Additional Records Based on the School’s responses, and in conjunction with Mr. Bendersky’s appeal, it is unclear if the School possesses additional records responsive to both his December 15th request and his modified March 9th request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the School must clarify whether additional records exist 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