Jeff Raymond v. Provincetown, Town of- Police Department (SPR 20231751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2023 SPR23/1751 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 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

Barbara Peters SPR23/1751 Page 2 August 10, 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. Previous appeal This request was the subject of a previous appeal. See SPR23/1383 Determination of the Supervisor of Records (July 6, 2023). In my July 6th determination, I asked the Department to provide further specificity with regard to its fee estimate. The Department provided a response on July 20, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1751, was opened as a result. 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 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

Barbara Peters SPR23/1751 Page 3 August 10, 2023 G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s July 20th response In its July 20, 2023 response, the Department provided further information regarding the proposed fee estimate of $37.50. The Department stated the following: In response to your appeal, SPR23/1383, and the Supervisor’s determination issued on July 6, 2023, the Provincetown Police Department is providing further information regarding its fee estimate for the time to search for and locate certain communications requested involving matters to the POST Commission’s reporting requirements for the past several years. Specifically, the Police Department has estimated in good faith that it will take 1.5 hours to search its e- mail system for communications with the POST Commission, as specified, and ‘municipal administration’ for a several year period. Based on my initial good faith work on this request, please be advised that there are approximately 120,000 e-mails sent or received to the Chief’s e-mail account. The Police Department is not including any segregation time in its cost estimate….[.] Based on a review of your request and the Police Department’s e-mail system’s capabilities and the sheer volume of e-mails received to that e-mail custodian, please be advised that a detailed, manual search will need to take place for a several year period of e-mail communications that you are seeking, including a manual search of the Police Chief’s inbox. The Police Department incorporates its prior response to this request with this correspondence, and also states that the Supervisor is declining to review your appeal with respect to Items 1, 2 and 5 of your request, as outlined in her determination. It is the Police Department’s position that the same rationale applies to the chart already provided by the Police Department in response to Item 4 of your request. 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 limited to, Attorney/Client [Privilege] and Exemptions (c) and (f) of the Public Records Law…[.] In its May 31st response, see SPR23/1383 Determination of the Supervisor of Records (July 6, 2023), 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

Barbara Peters SPR23/1751 Page 4 August 10, 2023 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. Upon review, I find that the Department has met its burden to explain how 1.5 hours is a reasonable time to search approximately 120,000 emails for responsive records. 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. Regarding the previous determination’s decision on ongoing litigation pertaining to Items 1, 2, and 5 of the request, based on a July 17, 2023 letter from the Massachusetts Peace Officer Standards and Training Commission (POST), new information has come to light in which I find that records responsive to these Items are not related to the pending litigation. Accordingly, the Department must address Items 1, 2 and 5. 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. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond