Neil Johnsen v. North Reading, Town of - Town Clerk (SPR 20242800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2024 SPR24/2800 Susan Duplin Records Access Officer Town of North Reading 235 North Street North Reading, MA 01864 Dear Ms. Duplin: I have received the petition of Neil Johnsen appealing the response of the Town of North Reading (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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 [an 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 . . . 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- 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 SPR24/2800 Page 2 October 22, 2024 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. Prior Petition This request was the subject of a prior petition. See SPR24/2324 Determination of the Supervisor of Records (August 23, 2024). In my August 23rd determination, I found that the Town had established a good cause for a time extension of 30 business days and that the Town may assess a fee limited to $75.00 per hour for attorney review. On September 9, 2024, the Town responded, providing a fee estimate. Unsatisfied with the Town’s response, Mr. Johnsen petitioned this office and this appeal, SPR24/2800, 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).

Susan Duplin SPR24/2800 Page 3 October 22, 2024 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. Fees - 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 how 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 Town’s September 9th response In its September 9, 2024 response, the Town provided a fee estimate of $4,250.00 and stated the following: The Town incorporates its initial response, together with any and all privileges and exemptions asserted therein, by reference here. The Town initially estimated that it would cost a total of $3,750.00 to comply with your requests, which was based on an estimated 140 hours of employee search and segregation time and an additional 10 hours of Town Counsel time charged at the hourly rate of $25.00. Given the Supervisor’s decision, Town Counsel time will be charged at an hourly rate of $75.00 for a total estimated cost of $4,250.00 to comply with your Requests.

Susan Duplin SPR24/2800 Page 4 October 22, 2024 However, if [Mr. Johnsen] withdraw[s] requests Nos. 3, 6, 7, 12 and 15 the Town estimates it will take twenty (20) hours of employee search and segregation time and three (3) hours of Town Counsel time. Accordingly, it would cost a total of $725.00 to comply with [Mr. Johnsen’s] Requests. Please note, that because the Town has less than 20,000 residents, according to the last Decennial U.S. Census, you will be charged for all hours of work associated with these Request. As previously discussed, the fee and response time estimates are a direct result of the magnitude of [Mr. Johnsen’s] request and the significant amount of time that will be needed [to] search for, segregate, review and redact responsive records, particularly records that are privileged and confidential and those that require searching through thousands of paper files. Therefore, if [Mr. Johnsen] wish[es] to eliminate or narrow any of [his] requests, please let this office know. In its initial fee estimate on August 16, 2024, the Town broke it down as follows: Title Hours Rate Per Hour Total Board of Health Several hours to $0.00 $0.00 Members search for and locate e-mails Health Agent 40 hours to compile $25.00 $1,000.00 documents for review by Town Counsel Town Staff 100 hours to compile $25.00 $2,500.00 documents for review by Town Counsel Town Counsel 10 hours to review, $25.00 $250.00 redact and prepare a privilege log Total N/A $3,750.00 Additionally, in its August 16th response, the Town stated, “[Mr. Johnsen has] additionally requested documents which may contain personally identifiable information subject to redaction under Exemptions (a) and (c) of the Public Records Law… The disclosure of documents containing personally identifiable information, including but not limited to social security numbers, driver’s license numbers, and other personal information would result in an unwarranted invasion of privacy and are protected from disclosure pursuant to Exemptions (a) and (c). Therefore, any such information will be redacted from any documents provided… As a result of the magnitude of this request, I estimate that Town staff will have to expend 140 hours to search for, segregate and compile communications and documents that may be responsive to [Mr. Johnsen’s] requests… In addition, it is estimated that it will take an additional 10 hours for Town Counsel to review the documents for responsiveness and exemptions such as attorney- client privilege and public records law exemptions, and to prepare a privilege log… Town

Susan Duplin SPR24/2800 Page 5 October 22, 2024 Counsel is the lowest paid person capable of reviewing the documents for responsiveness and exemptions…” Although the Town has estimated that the process to compile the responsive records for production will take 140 hours of employee time, it is unclear how the Town requires this many hours to compile responsive records. As such, the Town must provide additional information regarding the tasks involved in compiling the records for production. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Also, the Town states that it would take 10 hours to review and redact the records by Town Counsel. However, it is unclear how many records there are, and the number of minutes per page the Town must spend to redact the records. The Town must clarify this matter Further, the Town indicated in its August 16th response that it will charge a fee for “preparing a privilege log.” However, it is unclear how the Town may assess a fee for this under G. L. c. 66, § 10(d)(iii). I find the Town must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). I encourage Mr. Johnsen and the Town to communicate in order to facilitate producing records efficiently and affordably. Mr. Johnsen may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town 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 enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Johnsen with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Sincerely, Manza Arthur Supervisor of Records cc: Neil Johnsen Gregg J. Corbo, Esq.