Sullivan, Tracy v. Bourne, Town of (SPR 20261224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2026 SPR26/1224 Barry H. Johnson Town Clerk Town of Bourne 24 Perry Avenue Bourne, MA 02532 Dear Mr. Johnson: I have received the petition of Tracy Sullivan appealing the response of the Town of Bourne (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2026, Ms. Sullivan requested the following “records concerning the Bourne Veterans Memorial Community Center” from “January 1, 2020 through the present[:]” . . . Please include a search of records (including email accounts, archived emails, and text-based communications where applicable) for the following positions: Town Administrator and Assistant Town Administrator[,] Facilities Manager / Buildings Department personnel[,] Board of Health officials and agents[,] Fire Department leadership (including Fire Chief or designee)[,] Human Resources personnel[,] [and] [a]ny other employees or officials involved in building maintenance, environmental health, or safety oversight[.] Requested Records: [1] . . . All emails, attachments, memoranda, and correspondence referencing: [a] Mold, mildew, musty odors, or visible growth[;] [b] Indoor air quality concerns or ventilation issues[;] [c] Water leaks, flooding, or moisture problems[;] [d] Employee or occupant health complaints or symptoms[;] [e] Decisions to delay, deny, or limit environmental testing or remediation[;] [2] . . . Any records, communications, or reports referencing: [a] Gas leaks or suspected gas exposure in or around the building[;] [b] Vapor intrusion, soil contamination, or subsurface fumes[;] [c] The presence or history of a former gas station or underground storage tanks on or near the property[;] 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

Barry H. Johnson SPR26/1224 Page 2 April 16, 2026 [d] Air quality concerns potentially related to petroleum products, fuel vapors, or volatile organic compounds (VOCs)[;] [e] Testing, monitoring, or mitigation efforts related to these issues[;] [3] . . .Internal discussions or communications regarding: [a] Whether air quality testing should be conducted[;] [b] Interpretation of any environmental test results[;] [c] Concerns raised by staff, contractors, or third parties[;] [d] Any disputes or disagreements regarding building safety conditions[;] [4] . . . Any incident reports, safety alerts, or internal notifications related to: [a] Gas odors, leaks, or evacuations[;] [b] Air quality complaints[;] [c] Environmental hazards within the building[;] [5] . . . Communications with any external agencies or entities, including . . .: [a] Massachusetts Department of Environmental Protection (MassDEP)[;] [b] Local Board of Health[;] [c] Fire Department (if not already included internally)[;] [d] Environmental consultants or industrial hygienists[.] Search Terms (to assist in locating records): “mold,” “air quality,” “musty,” “odor,” “leak,” “water damage,” “HVAC,” “ventilation,” “gas leak,” “fumes,” “vapor intrusion,” “VOC,” “petroleum,” “underground storage tank,” “UST,” “environmental,” “sick,” “rash,” “respiratory[.]” Previous Petition This request was the subject of a previous petition from the Town. See SPR26/1109 Determination of the Supervisor of Records (March 31, 2026). In my March 31st determination, I found that the Town may assess a fee for segregation and redaction of the records responsive to the March 17th request. Concurrent with its petition to this office, the Town provided a fee estimate to Ms. Sullivan on March 26, 2026. Objecting to the fees, Ms. Sullivan petitioned this office, and this appeal, SPR26/1224, was opened as a result. Status of the Requestor Please note that under the Public Records Law the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Sullivan’s interest in obtaining the records shall have no bearing on the public nature of the records.

Barry H. Johnson SPR26/1224 Page 3 April 16, 2026 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. See 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). 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 hour if such rate is approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s March 26th Response In its March 26, 2026 response, the Town provides a total fee estimate of $2,762.50 and further states the following:

Barry H. Johnson SPR26/1224 Page 4 April 16, 2026 The Town has identified over 76,000 records that it believes are potentially responsive to Ms. Sullivan’s request[.] . . . An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege and information protected under other laws. After my office has collected the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents . . . [at] an hourly rate of $25.00. Based on my prior experience reviewing records of this nature, it will take approximately 112.5 hours to review each communication and any attachments, make necessary redactions, and compile the records for production. Thus, the maximum the Town is seeking to assess the requestor is $2,762.50 (112.5 hours to review and redact x $25)-(2 free hours x $25). Current Appeal In her April 3, 2026 appeal to this office, Ms. Sullivan states, “[t]he estimate does not appear to reflect a good faith effort to provide the requested records in a cost-effective manner, nor does it adequately justify the time or resources cited.” She additionally requests, “[a] waiver or further reduction of fees due to the public interest and health implications involved[.]” Ms. Sullivan is advised that G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Additionally, please note that, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Modified Request Subsequent to the opening of this appeal, in an email to the Town and this office on April 16, 2026, Ms. Sullivan narrowed the scope of her request to seek the following: [1] Records relating to mold inspection, testing, remediation, or containment from July 2025 through January 2026[;] [2] Work orders, maintenance logs, and internal communications regarding water

Barry H. Johnson SPR26/1224 Page 5 April 16, 2026 damage, mold, or air quality concerns[;] [3] Any records related to gas leaks, gas odors, or air quality complaints from May 2025 through November 2025[;] [4] Documentation regarding fire suppression system issues, discharges, malfunctions, or inspections during the same period[;] [5] Safety reports, incident reports, or complaints related to environmental or airborne hazards[;] [6] SDS (Safety Data Sheets) for all cleaning chemicals used in the building[;] [7] OSHA logs (including OSHA 300/300A/301, if applicable)[;] [8] Any environmental, industrial hygiene, or safety assessments conducted[;] [9] Communications involving management or facilities regarding employee complaints of respiratory symptoms, gas exposure, or environmental hazards/mold from April 2024 through June 2024 - Specifically Human Resources. Conclusion Given the modifications to Ms. Sullivan’s original request, I find it unnecessary to address the issues raised in this appeal at this time. This office encourages Ms. Sullivan and the Town to continue to communicate directly 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). Accordingly, the Town is ordered to provide Ms. Sullivan with a response to her modified April 16, 2026 request in a manner consistent with 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. If issues remain unresolved, Ms. Sullivan may appeal the substantive nature of the Town’s response to her modified request within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Tracy Sullivan