Sundin, Wilson v. New Salem, Town of (SPR 20261222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2026 SPR26/1222 Emily Hill Town Coordinator Town of New Salem 19 S. Main Street New Salem, MA 01355 Dear Ms. Hill: I have received the petition of Wilson Sundin appealing the response of the Town of New Salem (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2026, Mr. Sundin requested the following: . . . [R]ecords concerning any administrative review, discipline, employment action, fitness-for-duty determination, certification review, or statutory reporting decision arising from the arrest of [an identified] Officer . . . on or about January 22, 2023. . . . Responsive records include, but are not limited to: [1] Internal Affairs investigations, command staff reviews, disciplinary recommendations, or executive summaries[;] [2] Any written notice or documentation of administrative leave, suspension, reprimand, termination consideration, or other personnel action[;] [3] Settlement agreements, last-chance agreements, resignation documentation, or separation memoranda[;] [4] Any fitness-for-duty or certification-status review conducted following the arrest[;] [5] Selectboard meeting minutes, executive session minutes . . . , briefing materials, or legal advisories concerning the incident[;] [6] Correspondence between municipal officials and the Police Department regarding mandatory reporting obligations to the Massachusetts Peace Officer Standards and Training Commission (POST)[;] [7] Any record reflecting whether the Town determined the incident constituted reportable misconduct under G.L. c. 6E, including any decision not to report[;] [8] Any notification, inquiry, or communication to or from POST concerning this incident[;] 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

Emily Hill SPR26/1222 Page 2 April 15, 2026 [9] Risk management, municipal insurer, or municipal counsel memoranda addressing officer retention, discipline, certification risk, or liability exposure[;] [10] Any document preservation directives, records retention decisions, or document collection efforts relating to this incident[;] [11] . . . [A]ny record showing how the Town evaluated its statutory obligation to report potential misconduct to POST . . . [.] The Town provided a response on March 31, 2025, which included a fee estimate. Unsatisfied with the Town’s response, and objecting to the fees, Mr. Sundin petitioned this office and this appeal, SPR26/1222, 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). 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. Att’y 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 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

Emily Hill SPR26/1222 Page 3 April 15, 2026 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 16th Response In its March 31, 2026 response, the Town indicated that it “will require 25 business days to respond to [Mr. Sundin’s] request, as the magnitude of [the] request unduly burdens the other responsibilities of the Town.” As part of its response, the Town also provided a fee estimate of $200.00 “to comply with [the] request” and indicated that because its population is under 20,000, its estimate includes “the initial 2 hours of time devoted to complying with [the] request in accordance with 950 CMR 32.07(2)(m)[.]” The Town additionally stated that it would charge a rate of $25 per hour, which is less than the hourly rate of the lowest paid employee with the necessary skills to perform the required tasks, and further provided the following with regard to its fee estimate: Subject to the payment of all applicable fees, the Town will provide . . . copies of any records responsive to your request to the extent that such records are subject to disclosure under the Public Records Law. To the extent that any responsive records, or portions thereof, are exempt from disclosure under the Public Records Law or any applicable privilege, the Town will notify you in writing of the specific exemption or privilege and such records will be withheld or released in redacted form. . . . An initial search indicates that records responsive to your request are in the custody of the Town. . . . Search time by the lowest-paid Town employee[s] capable of searching for and compiling responsive records: Town Coordinator: 5 hours at $25.00 per hour, subtotal $125.00. Chief of Police: 2 hours at $25.00 per hour, subtotal $50.00. Police Sergeant: 1 hour at $25.00 per hour, subtotal $25.00. Grand total good faith estimate: $200.00. Current Appeal In his April 3, 2026 appeal to this office, Mr. Sundin states, “[t]he Town’s response . . . asserts (1) a need for 25 business days to fulfill the request and (2) a $200 fee estimate. . . . This appeal challenges [both portions of the Town’s response] as inconsistent with the Massachusetts Public Records Law. . . .” He additionally requests that the Supervisor “[d]irect the Town to . . . grant a waiver or substantial reduction in light of the public interest[.]”

Emily Hill SPR26/1222 Page 4 April 15, 2026 G. L. c. 66, § 10(b)(vi); Fee Waivers Where the Town has indicated that it intends to provide a response within the allowed statutory timeframe, I find that the portion of Mr. Sundin’s appeal in which he objects to the portion of the Town’s response “[asserting] . . . a need for 25 business days to fulfill the request” is unclear. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). Additionally, Mr. Sundin 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. 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). Reasonableness of the Fee Estimate Where the Town provided a response within 10 business days, it is necessary to review the reasonableness of the Town’s fee estimate. Although the Town has estimated that the process to compile the responsive records will take 6 hours of employee time, it is not clear from the Town’s estimate how much of this time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. It is also unclear how many records there are, or the number of minutes that the Town must spend per page for the redactions. The Town must provide additional information regarding the tasks involved in producing these 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). Further, where the Town indicates in its fee estimate that the “records will be withheld or released in redacted form” to the extent that “[the] records, or portions thereof, are exempt from

Emily Hill SPR26/1222 Page 5 April 15, 2026 disclosure under the Public Records Law[,]” I find that it is unclear if the redactions are required by law. As such, I find the Town must clarify and state the applicable statutes, if any. 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 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). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee estimate of $200.00 is consistent with G. L. c. 66, § 10(d). I additionally encourage the parties to continue to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) Conclusion Accordingly, the Town is ordered to provide Mr. Sundin with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Wilson Sundin