Jeff Raymond v. Provincetown, Town of- Police Department (SPR 20231383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1383 Barbara Peters Records Clerk Provincetown Police Department 26 Shank Painter Road Provincetown, MA 02657 Dear Ms. Peters: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Provincetown 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 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

Barbara Peters SPR23/1383 Page 2 July 6, 2023 calendar year 2022 and through March 31, 2023, preferably in the same format 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 provided a response on May 31, 2023, which included a fee estimate. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1383, 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. 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. Fees - Municipalities 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. 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

Barbara Peters SPR23/1383 Page 3 July 6, 2023 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 Department’s May 31st response In its May 31, 2023 response, the Department provided Mr. Raymond with certain redacted records responsive to his request. The Department claimed Exemption (c) in support of its redactions and stated the following: In this instance, the Department has carefully considered the application of Exemption (c) to the redacted charts enclosed, to determine whether disclosure of the information that has been redacted or withheld is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors set forth in the PETA case, cited above, as well as litigation pending in Massachusetts courts in the matters of Hovsepian. Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court, C.A. 2284CV00906 and New England Police Benevolent Association. Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court, C.A 2384CV00500. In fact, the Provincetown Police Department’s officers, with the exception of the Chief and Deputy Chief, are all in the NEBPA Union. In balancing these interests, the Department has concluded that it is appropriate at this time to redact certain personnel information from the enclosed charts under Exemption (c) as such information relates to specifically identified officers and their personnel information. 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:

Barbara Peters SPR23/1383 Page 4 July 6, 2023 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. With respect to Items 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 pending litigation, I decline to opine on the applicability of Exemption (c) 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). The Department also charged Mr. Raymond a fee of $37.50 “…to search for and locate communications requested for the time period requested with POST Commission staff and municipal administration.” The Department’s May 31st fee estimate In its response, the Department stated that it intends to charge Mr. Raymond for 1.5 hours at the rate of $25.00 per hour “…to search for and locate communications requested for the time period requested with POST Commission staff and municipal administration” for a total of $37.50. In support of its fee estimate, the Department stated the following: Under the Public Records Law, the Department is allowed to charge for employee search and segregation time necessary to respond to your request, together with any redactions required by law. That time is charged at the hourly rate of the lowest paid person capable of compiling, segregating, redacting, and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25/hour unless otherwise authorized by the Supervisor of Records. Unless otherwise noted below, the lowest paid employees capable of performing the necessary searches are paid more than $25/hour, and therefore you will be charged the maximum rate of $25/hour. Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census, you will be charged for all hours of work associated with this request. It is anticipated that the Department will make the documents available electronically and, as such, there will be no copying charges. The actual cost of producing the records may vary once the Department begins preparing the records for response. Upon receipt of your payment in the amount of $37.50 made payable to the Town of Provincetown, the Department will begin the work necessary to search, segregate, and redact (where appropriate) the documents you have requested. 950 CMR 32.06(2)(f). Please note that pursuant to 950 CMR 32.06(2)(f), you will not be provided records until all fees are paid. The Department will provide a further basis if any records, are withheld or redacted in compliance with the Public Records Law, as noted above, including, but not

Barbara Peters SPR23/1383 Page 5 July 6, 2023 limited to, pursuant to Exemptions (c) and (f) of the Public Records Law. It is anticipated that the Department shall produce the requested records identified above, subject to withholding or redaction, within 15 business days of receiving payment. Based on the Department’s response, it is unclear what tasks are involved in searching for the responsive records. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide a response to Mr. Raymond, 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. Mr. Raymond may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1) Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond