Neil Johnsen v. North Reading, Town of - Town Clerk (SPR 20242324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2324 Susan Duplin Records Access Officer Town of North Reading 235 North Street North Reading, MA 01864 Dear Ms. Duplin: On August 16, 2024, this office received the petition of Attorney Greg J. Corbo, of KP Law, on behalf of the Town of North Reading (Town) seeking an extension of time and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Neil Johnsen. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). From August 2, 2024 to August 9, 2024, Mr. Johnsen requested the following: [1.] Copy of All currently approved Septic Installer Permit holders with the score they got on [identified individual]’s Test[;] [2.] Copy of all Septic Installer Permit Applications that were submitted for the time period of 1-1-20 to 9-2-24. This is just submitted applications no approved installers[;] [3.] . . . the town letter counsel has sent to [an identified individual] with his comments on the septic installer test approving the test[;] [4.] . . . copy of meeting minutes from when new septic installers test was approved by the board of health[;] [5.] . . . a copy of the Septic Install Permit from . . . Main Street North Reading, MA[;] [6.] . . . [c]opies of all septic installation inspections performed by other town agents. (Andover, Wilmington, Lynnfield) from 1-1-20 to 8-5-24[;] [7.] . . . a copy of all emails from and to [identified individuals] regarding septic installation permits. This includes emails sent to applicants with there [sic] test score on the septic installation test along with any reply’s or emails asking questions Time period 1-1-20 to 8-5-24[;] [8.] . . . a copy of all investigation materials into the improper septic soil test at . . . 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

Susan Duplin SPR24/2324 Page 2 August 23, 2024 Foley Drive North Reading, MA. A soil test [an identified individual] witnessed before purchasing the house with confidential information. This includes all emails from Town Administrator, Town Counsel, [an identified individual] and any evidence found in the course of the investigation. Time Period 1-1-2016 to 1-1- 2020[;] [9.] . . . a copy of the current Septic Install Permit holders renewals for 2024 with all associated paperwork as required by section 9 of Chapter 3. Including but not limited to background checks for taxes, Proof they got 80% on installer test, All the eligibility requirements, including but not limited to other septic licenses, hoisting licenses, insurance[;] [10.] . . . a copy of all communications (Email, Letter, Phone) of any threat of revocation of a septic installers permit holders. This includes denial of a renewal application for reasons stated under Chapter 3 Section 1A number 9. Time period 1-1-20 to 8-6-24[;] [11.] . . . a copy of the Soil Test for . . . Foley Drive witnessed by [an identified individual]. Time period 1-1-2015 to 1-1-2018[;] [12.] . . . a copy of all Septic Installer certificates of compliance submitted for 1-1- 20 through 8-6-24. Certificates Per Mass Title V section 15.021[;] [13.] . . . copy of the job description for the Health Agent and health administrator including job duties[;] [14.] . . . a copy of all communications (Emails, Letters, Phone records) between North Reading Town Administrator, Town Conunsel [sic], Health Administrator, Health Agent and the Middlesex DA Office regarding any investigation into the board of health and/or the health agent[;] [15.] . . . a copy of all itemized invoices from KP Law related to the board of health, the health agent or septic systems. Time period 1-1-16 to 8-8-24[;] [16.] . . . a copy of all septic repair records for the former Papa Ginos at 109 Main Street North Reading, Ma. In an email on August 20, 2024, Mr. Johnsen objected to the Town’s petition. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests;

Susan Duplin SPR24/2324 Page 3 August 23, 2024 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Records In its petition, the Town requests “an extension of time of an additional 45 business days.” In support of its request the Town provides the following information: As outlined herein, the requestor has propounded sixteen (16) broad requests, some going back almost ten years, which will require review of thousands of documents, to find responsive records. For example, he asks for, “a copy of all Septic Installer certificates of compliance submitted for 1-1- 20 through 8-6-24. Certificates Per Mass Title V Section 15.021”. (Request No. 12) Similarly, the requester asks for “Copies of all septic installation inspections performed by other towns agents. (Andover, Wilmington, Lynnfield) from 1-1-20 to 8-5-24;” (Request No. 6). To search for records responsive to these requests, a Town employee will have to search through and review the physical file for nearly every address within the Town of North Reading that has a septic system to determine if there are one or more certificates of compliance within the requested date range and whether inspections were performed by agents of other towns. These records are not kept electronically and there are thousands of property files that will have to be searched to locate responsive records. Those records will then have to be segregated and copied and reviewed for personal information that is not subject to disclosure. This is a monumental task that is likely to take more than 140 hours. In light of the need to collect and examine the records, and the capacity of the Town to produce the records without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Town is granted an extension of 30 business days.

Susan Duplin SPR24/2324 Page 4 August 23, 2024 Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Susan Duplin SPR24/2324 Page 5 August 23, 2024 Current Petition In its petition, the Town requests, “an increase in the hourly rate for Town Counsel’s time to the rate charged to the Town, $245.00 per hour . . .” In support of its request, the Town provides the following information concerning anticipated redactions: In this matter, the requestor has specifically requested communications from Town Counsel and investigatory materials which Town Counsel must review for exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client and/or investigatory privileges. See, e.g., G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3). The requestor has additionally requested an extensive amount of documents which may contain private information subject to Exemptions (a) and (c) of the Public Records Law and which Town Counsel must review and undertake the requisite balancing analysis in pursuant to People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017), to determine what records should be redacted to protect individual privacy interests. In these circumstances, Town Counsel is the only employee with the necessary skill to determine whether the attorney-client privilege and/or other privileges and exemptions apply. In light of the Town’s petition, I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee limited to $75.00 per hour for attorney review of those records being reviewed for attorney-client privilege. Request for Relief In its petition, the Town “requests to be relieved of its obligation to provide copies of the records sought.” In support of its request, the Town argues the following: It is apparent that the requester’s requests for records are frivolous, duplicative, intimidating, designed to harass and disparage specific Town officials, and seek to waste time and resources as opposed to disseminating information about actual or alleged governmental activity. These voluminous requests were made in rapid succession shortly after the requestor was denied a license by the Town’s Health Administrator. These multiple requests seek similar or the same information with varied wordings, placing a heavy burden on the Town to interpret the requests and review documents for responsiveness. Given the significant amount of confidential information requested, it is clear that the requestor has no intention of using the records to disseminate information about actual or alleged governmental activity, but rather, he seeks only to use them to further his own personal vendetta.

Susan Duplin SPR24/2324 Page 6 August 23, 2024 Based on the information provided in the Town’s petition, I find that the Town has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). In light of the above, I cannot grant the Town’s petition seeking relief from its obligation to produce responsive records. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Additionally, I find the Town may assess a fee limited to $75.00 per hour for attorney review as described above. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Neil Johnsen