Jeff Raymond v. Whitman, Town of - Police Department (SPR 20231304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1304 Melissa Madden Records Access Officer Whitman Police Department 20 Essex Street Whitman, MA 02382 Dear Ms. Madden: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Whitman Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and its compliance with the Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020 to create a ‘database listing complaints against police officers,’ as detailed below.” Specifically, Mr. Raymond requested: [1.] A copy of the document your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its “database listing complaints against police officers” planned for May of 2022…. [2.] Copies of any relevant responsive communications between a) your police department and/or your town officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [3.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed…. [4.] Information concerning “complaints against police officers” issued in the calendar year 2022 and through March 31, 2023, preferably in the same format 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

Melissa Madden SPR23/1304 Page 2 June 29, 2023 used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database…. [5.] A copy of the document your police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the “2023 POST Commission Disciplinary Records Resubmission”…. [6.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with the “2023 POST Commission Disciplinary Records Resubmission” described above. The Department responded on May 2, 2023 and asked for clarification regarding Mr. Raymond’s request. The Department also noted that the responsive records may potentially be redacted or withheld pursuant to Exemptions (a) and (c) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c). The Department also noted that the “[p]otentially responsive records, especially for Items 1 and 5, are also likely to include records that are the subjects of dispute in active litigation, administrative hearings, or mediation under 950 CMR 32.08(2), as they relate directly to the matters of Hovsepian, Scott et al. v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court Docket No. 2284CV00906 and New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court Docket No. 2384CV00500.” On May 2, 2023, Mr. Raymond provided clarification of his April 16th request. On May 16, 2023, the Department responded and offered suggestions on how to run searches for the responsive records. The Department stated, “[p]lease confirm the search you would like the Department to conduct.” On May 29, 2023, Mr. Raymond responded and stated, “I am unsure a[s] to what further clarifications you require at this point. I believe I have been sufficiently clear with Whitman both in my initial request and in my earlier clarification….I requested six items, distilled as follows…” On June 13, 2023, the Department responded and provided two fee estimates based on two different searches. Unsatisfied with the responses, Mr. Raymond petitioned this office and this appeal, SPR23/1304, 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).

Melissa Madden SPR23/1304 Page 3 June 29, 2023 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 estimate – 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 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 Department’s June 13th Response In its June 13, 2023 response, the Department provided two different fee estimates based on two different searches for the responsive records. The Department states: This letter is in response to your follow up request for records, emailed on May 29, 2023 and received the next business day, May 30. Our prior correspondence, including your initial request on April 16, the Department’s response seeking clarification on May 2, your subsequent response on May 2, and the Department’s second response seeking further clarification on May 16 are incorporated by reference. Please consider this letter the Department’s initial response pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10 et seq.

Melissa Madden SPR23/1304 Page 4 June 29, 2023 As you know, to date, you have not provided search terms for the Department to use in responding to your request. Instead, in response to the Department’s requests for clarification about your initial April 16 request, you have provided some additional information about the nature of your requests as we have communicated back and forth. Based on these communications, the Department attempted in good faith to define several searche[s] with varying parameters in an attempt to locate all potentially responsive records for your requests. The search process used by the Department is described below…. Search 1: The Department ran an initial search of its email server for emails containing the terms POST OR Peace Officer Standards and Training OR police AND submission OR database OR compliance OR mandate, between the data July 1, 2021 through April 16, 2023. This search returned 52,326 results. Search 2: In an attempt to narrow the search results, the Department ran another search of its email server for emails containing the terms POST OR “Peace Officer Standards and Training” OR police AND submission OR database OR compliance OR mandate, between the dat[e] July 1, 2021 through April 16, 2023, and added a limitation for the From/Owner/To/CC fields to contain the domain mass.gov. This search returned 4,640 results. Search 3: Given the massive numbers of responsive emails for Searches 1 and 2, Town employees also conducted limited searches of the police chief’s emails to identify a few sets of emails we know exist (without an exhaustive search), such as emails to/from a few POST Commission-specific email addresses and notifications to Department officers regarding their certification status. These searches returned a total of 73 emails, but upon initial review these emails do contain some exempt information, including without limitation under Exemptions (a) (attorney-client privileged information) and (c) (medical information), which must be redacted and/or withheld prior to production to you. These emails also include the spreadsheets submitted to POST in 2021 and 2022 that you requested. The Department intends to complete this process and produce responsive records to you without charging a fee. However, Town employees have already spent many hours responding to this request and due to the other obligations of relevant personnel and the need for additional review and redactions, these records are not yet ready to produce. As such, the Department requires additional time to respond pursuant to M.G.L. c. 66, §10(b)(vi)—up to 25 business days from our receipt of your clarified request on May 30—to produce these records. We expect these documents will be provided to you on or before July 6, but we will continue diligently working on this request and hope to be done earlier. We will produce the redacted records to you when they are ready, along with a detailed description of any applicable exemptions in accordance with the Public Records Law….

Melissa Madden SPR23/1304 Page 5 June 29, 2023 Fee Estimate: As to Searches 1 and 2, as we’ve noted in our prior correspondence with you, the responsive emails are likely to contain various exempt information, including without limitation exempt from disclosure pursuant to the following exemptions under M.G.L. c. 4, §7(26): Exemption (a) (attorney-client privileged information, union communications, personal contact information, intellectual property); Exemption (c) (personal contact information, medical information, personnel information, private information); Exemption (d) (deliberative process records); Exemption (f) (investigatory materials); and/or Exemption (o) (personal contact information)…. In the most-recent decennial U.S. Census, the Town of Whitman had a population of 15,121 and, as such, the Department may charge you for all time involved in responding to your request…. Given the nature and complexity of the exemptions and privileges cited above, and the wide-ranging and confidential and/or private nature of the related information, the lowest paid employee of the Department who could continue the search for, compilation, review, segregation, redaction and reproduction of records and make judgments as to which information is public and which information is exempt and must be redacted would be a member of the Town’s information technology staff, legal counsel and/or office staff, all of whom are compensated at rates exceeding $25.00 per hour. As such, any time spent completing the response process will be charged at the maximum rate of $25.00 per hour. Based on the Department’s experience responding to public records requests and the processes described above, and considering the applicable exemptions, the extensive time we anticipated will be needed for extensive redactions, and the number of responsive records, and further including the time already spent responding to your requests, we estimate that it will take on average at least one (1) minute per email to fully search for, compile, review, segregate, redact, and reproduce each responsive record. This will involve without limitation locating all responsive records in each file, saving the responsive records to a single file, manually reviewing each record to determine whether it is in fact responsive, redacting any exempt information with the labeling and explanation required by law, and then saving this document to another file for production to you. Although this will be a fluid process and may vary for each particular record, we estimate the time will be comprised on average of approximately 10% search and compilation time, 10% segregation time, and 80% redaction time for each record; we estimate the reproduction time at the end of this process will be nominal. In Search 1, the Department located 52,326 potentially responsive emails. Thus, for Search 1, it would take an estimated additional 872 hours and 6 minutes of

Melissa Madden SPR23/1304 Page 6 June 29, 2023 employee time to complete the Department’s search for, compilation, review, segregation, redaction and reproduction of responsive records, for a total initial fee of $21,802.50 (52,326 emails x 1min/email x $25/hr). In Search 2, the Department located 4,640 potentially responsive emails. Thus, for Search 2, it would take an estimated additional 77 hours and 20 minutes of employee time to complete the Department’s search for, compilation, review, segregation, redaction and reproduction of responsive records, for a total initial fee of $1,933.33 (4,640 emails x 1 min/email x $25/hr). Current Appeal In his appeal, Mr. Raymond argues that “[t]he fee estimate for the records are inappropriate and overestimate both the length of time needed and cost of compliance. The municipality estimates more than 77 hours of labor for a total fee of $1,933.33 for records…” Although the Department, in Search 2, has estimated that the process of producing the responsive documents will take 77 hours and 30 minutes of employee time, and that segregating and redacting will take 90% of the time to produce the responsive records, it is unclear if the Department is assessing a fee for redactions that are not required by law. 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). The Department must clarify if redactions are required by law. With regard to Mr. Raymond’s objections regarding the Department’s claims of redactions made pursuant to Exemption (a), Exemption (c), and the attorney-client privilege, please be advised that where the Department is yet to produce the records, I find this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Raymond may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. With respect to records requests 1, 2, and 5, these requested records are the subjects of a dispute in active litigation. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Suffolk Superior Court Docket No.2284CV00906). In light of the

Melissa Madden SPR23/1304 Page 7 June 29, 2023 pending litigation, I decline to opine on parts 1, 2 and 5 of this request at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). I encourage Mr. Raymond and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Raymond may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department 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 Department is ordered to provide Mr. Raymond 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond