Brower, William v. West Springfield, Town of (SPR 20261075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 3, 2026 SPR26/1075 Kate R. O’Brien Scott, Esq. Chief of Staff/General Counsel Town of West Springfield 26 Central Street, Suite 32 West Springfield, MA 01089 Dear Attorney Scott: I have received the petition of William Brower appealing the response of the Town of West Springfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 28, 2026, Mr. Brower made the following request: Please produce the following records for the current Mayor of West Springfield from the date he began any employment with the Town to present: [1] All complaints, grievances, incidents, notes, disciplinary records, or performance evaluations involving the Mayor, including any allegations of misconduct, failure to investigate complaints, or dereliction of duty in his official capacity (during his time as Mayor and any prior town positions). [2] All training records, certificates, completion dates, attendance logs, and continuing education related to:  Handling, classification, and processing of complaints and grievances received by municipal officials[;]  Initiating and conducting investigations upon receipt of a complaint or grievance[;]  Official process and duty to act once a complaint/grievance is received by the Mayor or his office[.] The Town responded on March 10, 2026. Unsatisfied with the Town’s response, Mr. Brower petitioned this office and this appeal, SPR26/1075, was opened as a result. 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

Kate R. O’Brien Scott, Esq. SPR26/1075 Page 2 April 3, 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. 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 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).

Kate R. O’Brien Scott, Esq. SPR26/1075 Page 3 April 3, 2026 The Town’s March 10th Response In its March 10, 2026 response, the Town provided a fee estimate of $1,825.00 to produce records responsive to Item 1 of the request. In addition, regarding Item 1, the Town stated: The Town conducted a review of the Mayor’s personnel file and determined that no records responsive to your request exist within that file. The Mayor is an elected official rather than a Town employee, and the Town does not maintain a disciplinary or complaint tracking system for elected officials comparable to the personnel records maintained for municipal employees. To the extent records such as disciplinary records or performance evaluations existed within a personnel file, such records would constitute personnel information exempt from disclosure pursuant to G. L. c. 4, §7(26)(c)… Regarding Item 2 of the request, the Town stated, “[n]o records exist which are responsive to your request.” In support of its fee estimate for Item 1, the Town provided the following information: Your request also broadly seeks any “allegations of misconduct,” “failure to investigate complaints,” or “dereliction of duty” over the course of the Mayor’s approximately ten-year tenure and any prior Town employment. The Town does not maintain a centralized log or index of such allegations. As written, the request is not limited by time frame, department, incident, or specific record type in a manner that would allow responsive records to be readily identified. Locating records that might contain these broadly defined allegations would require searching archived email systems and records maintained by multiple custodians across Town departments and manually reviewing potentially responsive correspondence over a period exceeding ten years. Under the Massachusetts Public Records Law, a requester must describe the records sought with reasonable particularity so that they may be identified and located. Pursuant to 950 CMR 32.07, based on the breadth of the request, the Town conducted a preliminary assessment and estimates that identifying custodians, conducting keyword searches of archived email systems, and performing an initial review of potentially responsive records would require approximately seventy-five (75) of staff time. I am the only employee with access to all such records and therefore capable of producing a response. My hourly rate is greater than the statutory maximum of $25.00/hour; the Town will not be seeking permission from the Supervisor to charge in excess of that rate. As we cannot charge for the first two (2) hours, please send a check in the amount of $1,825 (73 hours x $25/hour) payable to “Town of West Springfield” to my attention at the address below. The Town reserves the right to withhold or redact any additional information that is exempt from disclosure by law. If this search yields a substantial number of

Kate R. O’Brien Scott, Esq. SPR26/1075 Page 4 April 3, 2026 potentially responsive records, the Town may provide a revised estimate for any additional review and segregation time required before proceeding further… Current Appeal In his appeal petition, Mr. Brower argued that the Town’s response “is deficient, evasive, and appears to be bad-faith obstruction to avoid accountability for serious allegations.” Mr. Brower specifically took issue with the Town’s search process, invocation of Exemption (c), and “excessive fee.” In a telephone conversation with this office on March 31, 2026, the Town clarified that it is not withholding any records under Exemption (c), as it is not in possession of any records in the Mayor’s personnel file responsive to Item 1 of the request. The Town additionally confirmed that it possesses no records responsive to Item 2. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Given that the Town has confirmed that it is not withholding any records under Exemption (c) and possesses no additional records responsive to the request other than those subject to the fee estimate, and this office has no authority to compel the Town to create records, I will consider these portions of Mr. Brower’s appeal resolved. Fee Waivers 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. Please be advised, 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

Kate R. O’Brien Scott, Esq. SPR26/1075 Page 5 April 3, 2026 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). Reasonableness of the Fee Estimate Although the Town indicates that it would take 75 hours to produce the records responsive to Item 1 of the request, it is unclear why the Town requires this much time. The Town must advise how much time is needed to search and how much time is needed to segregate and/or redact under the law. Additionally, if redactions are required, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further, it is uncertain how many pages of responsive records exist and how many minutes per page the Town requires to segregate or redact the records. Accordingly, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Pursuant to 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). Consequently, the Town must also clarify whether its fee estimate includes time for segregation or redaction not required by law. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee estimate of $1,825.00 is consistent with G. L. c. 66, § 10(d). With regard to Mr. Brower’s objections regarding the Town’s search and identification of all responsive records subject to the fee estimate, please be advised that where the Town has yet to produce the records subject to the fee estimate, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once the records are provided, Mr. Brower may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Mr. Brower and the Town to communicate to facilitate providing records more efficiently and affordably. Mr. Brower may wish to narrow the request. 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). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Town is ordered to provide Mr. Brower with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Mr.

Kate R. O’Brien Scott, Esq. SPR26/1075 Page 6 April 3, 2026 Brower may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: William Brower