Jeff Raymond v. Peace Officer Standards and Training Commission (SPR 20241882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2024 SPR24/1882 Randall E. Ravitz, Esq. General Counsel Records Access Officer Peace Officer Standards and Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Attorney Ravitz: I have received the petition of Jeff Raymond appealing the response of the Peace Officer Standards and Training Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 1, 2024, Mr. Raymond requested the following: [A]ny responsive documents and information submitted to the Massachusetts Peace Officer Standards and Training (POST) Commission by police departments to comply with 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.” These documents will be used to provide the public with additional information on officer complaints by MassTransparency. Specifically, I request the following: [1.] All data submitted to the POST Commission regarding or related to the “complaints against police officers” or “Disciplinary Records Database” by police departments and/or other policing organizations and/or their agents broadly construed. ◦ If such data is submitted via a web portal (for example, but not limited to, Salesforce, Jira, Slalom, etc.), please include export of said data in .xls or similar format. ◦ This should include all reported data by departments and/or their agents, not simply the data POST plans to publish on their public- facing database set to release in the coming weeks. ◦ If supplemental information was provided to POST by departments 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

Randall E. Ravitz, Esq. SPR24/1882 Page 2 July 16, 2024 and/or their agents in the form of transmittal letters or examples/exhibits, broadly construed, please also provide that information. [2.] An export of the list of users from POST Commission portal(s), which includes police departments and/or other policing organizations, their contacts/agents, and/or other individuals who have signed up for POST Commission portals to submit information on recertifications, disciplinary records, or other information collected regarding police oversight, broadly construed, between the dates of the launch of the portal(s) and 31 May 2024 as detailed below... The Commission responded on June 17, 2024, providing a link to responsive records and a fee estimate. Objecting to the fees, Mr. Raymond petitioned this office, and this appeal, SPR24/1882, 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. 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 - Agencies An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii).

Randall E. Ravitz, Esq. SPR24/1882 Page 3 July 16, 2024 Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Current Appeal In his appeal petition, Mr. Raymond explains that “[t]his appeal is limited to the first bullet regarding the submitted data.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In his appeal petition, Mr. Raymond contends that “[a]s the response came at the end of the 11th business day (10 business days would have been 14 June 2024), the POST Commission cannot request fines by law.” In this case, Mr. Raymond submitted his request on Saturday, June 1, 2024, and it was received by the Commission on Monday, June 3, 2024. Where the Commission responded on June 17, 2024 by providing a link to responsive records, and a fee estimate for providing further records under G. L. c. 66, § 10(b), I find the Commission may assess a fee to produce responsive records. The Commission’s June 17th Fee Estimate In its June 17, 2024 response, the Commission provides a total fee estimate of $8,875. Additionally, in a letter to this office and Mr. Raymond on July 8, 2024, the Commission reiterates the claim that it is entitled to assess fees. In its June 17th response, in support of its fee estimate, the Commission provides the following information: Given the volume of information, the Commission would assess a fee of $25 an hour after the first four hours of searching for, compiling, segregating, redacting, and reproducing the requested records. We would expect a project of this magnitude to take upward of 360 hours to prepare. . . . The Commission expects it would redact the following information: • Any information that constitutes non-public criminal offender record information (CORI) pursuant to M.G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”) in light of M.G.L. c. 6, § 167, et seq., governing the dissemination of CORI. • Any report of domestic violence or sex offenses that are not subject to disclosure

Randall E. Ravitz, Esq. SPR24/1882 Page 4 July 16, 2024 pursuant to M.G.L. c. 41, § 97D or M.G.L. c. 41, § 98F. These statutes operate through Exemption (a). • Any information the disclosure of which would violate a person’s right against unreasonable, substantial, or serious interference with privacy under M.G.L. c. 214, § 1B. This, too, operates through Exemption (a). • Any reference to a medical condition or private information that is non-public under Exemption (c). Please also note that the Massachusetts Fair Information Practices Act places certain restrictions on the disclosure of information that is not a public record and constitutes “personal data.” See M.G.L. c. 66A, §§ 1- 3; 801 CMR 3.00; 555 CMR 8.00. Additionally, in its July 8th letter, the Commission also explains that “certain redactions may be required by: ... M.G.L. c. 265, § 24C; and/or M.G.L. c. 209A, § 8.” Further, in its June 17th fee estimate, the Commission provides the following chart: Task Estimated Time 1. Compilation of the originally submitted records. 868 spreadsheets x 10 This entails locating and manually downloading minutes per sheet = each agency disciplinary-record spreadsheet, given 145 how the historical information is not stored on the hours Commission’s current database. There are 434 agencies in scope, each agency submitted 2-4 disciplinary spreadsheets. Approximately 868 sheets will need to be downloaded. 2. Review, analysis, and redaction of the records. As 868 spreadsheets x 12 explained above, there are approximately 868 minutes per sheet = spreadsheets. The Commission estimates it will 174 take an average of about 12 minutes per hours spreadsheet for a Commission staff member to review and analyze the columns requested in each spreadsheet, and to make redactions required by law. 3. Review, research and analysis by attorney(s). 40 hours Total: $8,875 145 + 174 + 40 = 359 hours 359 hours – 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 355 hours 355 hours x $25/hour= $8,875 As noted above, 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.

Randall E. Ravitz, Esq. SPR24/1882 Page 5 July 16, 2024 32.06(4). Please note that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also “required by law.” Accordingly, while the Commission may assess a fee for segregation and redaction pursuant to Exemption (a), the Commission is not permitted to assess a fee for segregation and redaction under Exemption (c). Additionally, based on the Commission’s response, it is unclear why it requires the amount of time indicated above to compile the records. Specifically, it is unclear why it would require 10 minutes to locate and download each spreadsheet. Further, please note that under the Public Records Law, an agency may assess fees to search for, compile, segregate, redact or reproduce records. See G. L. c. 66, § 10(d)(ii); 950 CMR 32.07 (2)(i). Consequently, it is unclear what tasks the Commission is referring to as “[r]eview, research and analysis by attorney(s)” in its fee estimate. Particularly, it is uncertain how such tasks would constitute time to search for, compile, segregate, redact or reproduce records. Also, under the Public Records Law, where appropriate, agencies 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 records, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(ii). Accordingly, the Commission must confirm whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). This office encourages Mr. Raymond and the Commission to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 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 Commission 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 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.

Randall E. Ravitz, Esq. SPR24/1882 Page 6 July 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond