Neil Johnsen v. North Reading, Town of - Town Clerk (SPR 20243267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3267 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 SPR24/3267 Page 2 December 17, 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 and Appeal This request was the subject of a prior petition and a prior appeal. See SPR24/2324 Determination of the Supervisor of Records (August 23, 2024) and SPR24/2800 Determination of the Supervisor of Records (October 22, 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. In my October 22nd determination, I found that the Town must provide additional information regarding its fee estimate. On November 5, 2024, the Town responded, further explaining the fee estimate. Unsatisfied with the Town’s response, Mr. Johnsen petitioned this office and this appeal, SPR24/3267, 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 SPR24/3267 Page 3 December 17, 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). Current Appeal In his appeal, Mr. Johnsen states, “I still disagree with the new revised breakdown that the town of north reading has sent. For instance, you can’t figure out how much request 12 is costing. They group 3, 6, 7, 12 and 15 together for a savings of $3,025 dollars. Without knowing how much each request is it’s hard for me to modify my scope… I would agree that this response is better since your last letter back to them and now includes a total number of pages and documents… I believe my requests are very specific and are related to my appeal… The fee breakdown provided still does not satisfy the requirements of Ma Ch 66 section 10 (b) (viii) as its not itemized since they lumped all the requests into one breakdown with a total number of pages… Without an itemized breakdown per request, I am not sure which requests to modify to help reduce the burden on the town. Under Ma Chapter 66 section 10 I would get two free hours

Susan Duplin SPR24/3267 Page 4 December 17, 2024 per request as [the Town] didn’t state in his initial response letter that the town has under 20,000 residents.” The Town’s responses In its prior response on September 9, 2024, the Town stated, “[t]he 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.” In its fee estimate on November 5, 2024, the Town reiterated its fee estimate of $4,250.00 and broke it down as follows: Title Hours Rate Per Total Hour Board of Health Several hours to search for and $0.00 $0.00 Members locate e-mails Health Agent 40 hours (to locate electronic $25.00 $1,000.00 information, such as responsive e- mails and convert them to formats capable of review and redaction; search for hard-copy records where it is estimated there are hundreds of physical files which will need to be reviewed for responsive records) Town Staff 100 hours (to locate electronic $25.00 $2,500.00 information, such as responsive e- mails and convert them to formats capable of review and redaction; search for hard-copy records where it is estimated there are hundreds of physical files which will need to be reviewed for responsive records) Town Counsel 10 hours (to review and redact $25.00 [sic] $250.00 [sic] where required by law: over 550 pages of invoices, 5 pages of responsive e-mails and an estimated 250 documents which may contain private information subject to Exemptions (a) and (c) of the

Susan Duplin SPR24/3267 Page 5 December 17, 2024 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)(805 pages x 45 sec/page= 10 hours). Total N/A $3,750.00 [sic] Additionally, in its November 5th response, the Town stated the following: As noted above and in the Town’s initial response, [Mr. Johnsen has] put forth an expansive request in which [he] seek[s] records in sixteen different categories, from several different departments of the Town, and with some requests going back almost ten years. Many of these requests seek information that is confidential and privileged, such that it will take a significant amount of time to review and redact or withhold records not subject to disclosure, and many other requests will require Town officials to search paper files relating to thousands of properties in the Town. For example, Request Nos. 6 and 12, seek records relating to septic system inspections and certificates of compliance issued between 1-1-20 and 8-6-24 for all properties in the Town. These records are not kept in electronic format, which means that Town staff will be required to review paper records for virtually every property to search for and segregate responsive records. It is expected that this work alone will take over 100 hours to complete. As further noted in the Town’s granted petition to the Supervisor, [Mr. Johnsen 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… [Mr. Johnsen 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. …

Susan Duplin SPR24/3267 Page 6 December 17, 2024 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 Requests. Although the Town claims that it is assessing a fee for redactions under Exemptions (a), (c), and the attorney-client privilege, it is unclear how the Town can assess a fee for redactions under Exemption (c) in this matter. 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 under 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). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv) to charge for redactions under Exemption (c). As such, although the Town may assess a fee for redactions required by law and under the attorney-client privilege, it is uncertain whether the fees include time to redact records under Exemption (c). The Town must clarify this. Also, the Town states that it would take 40 hours and another 100 hours “to locate electronic information” and that “it is estimated there are hundreds of physical files which will need to be reviewed for responsive records” by Town Staff and a Health Agent. However, it is unclear how many records each need to review and the number of minutes per page the Town must spend to redact the records. Also, it is not clear from the Town’s estimate how much time is allocated to search, and how much time is allocated for segregation, and redaction of the records. As such, the Town must provide additional information regarding the tasks involved in producing these records. Additionally, it is uncertain from the Town’s response why the responsive records must be converted to an alternative format. The Town must explain the tasks involved in the conversion of the responsive records, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the performance of those tasks. 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.

Susan Duplin SPR24/3267 Page 7 December 17, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Neil Johnsen Gregg J. Corbo, Esq.