Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0247 James Lovell Police Chief Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: I have received the petition of Shawn Wiley appealing the response of the Danvers Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 9, 2025, Mr. Wiley requested the following: With respect to [four identified individuals]: 1. Any psychological evaluations[;] 2. All post-incident counseling or reviews[;] 3. Any officer mental health evaluations[;] 4. All email communications involving the above-named officers with any of the below keywords: a. Investigation failure b. Cover-up c. Misconduct d. Bias e. Civil rights complaint f. [identified individual][;] 5. Any POST certifications[;] 6. Any specialized training and certifications[;] 7. Any licenses and/or permits[;] 8. Any records related to renewing certifications, licenses and/or permits[;] 9. Any public statements or press releases regarding the above-named officers[;] 10. Any correspondence with media outlets regarding the above-named officers[;] 11. Any documentation, policies, memoranda, or emails regarding how the Department handles public relations[;] 12. Any Department social media posts regarding these officers and any public responses[;] 13. Any civilian complaints against the Department in the last five years[;] 14. Any documentation showing the types of civilian complaints filed against the Department in the last five years[;] 15. Any documentation showing the outcomes of civilian complaints filed against 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

Chief James Lovell SPR25/0247 Page 2 February 10, 2025 the Department in the last five years[;] 16. Any documentation showing the number of complaints that resulted in disciplinary actions[;] 17. Any documentation showing the time taken to resolve complaints[;] 18. Any documentation or policies related to the Department’s handling of complaints[;] 19. Any documentation showing the number of appeals of complaints[;] 20. Any documentation showing the outcomes of appeals of complaints[;] 21. Any settlements of complaints[;] 22. Any FOIA requests submitted to federal agencies regarding the above-named officers[;] 23. Any records related to federal investigations of the Department[;] 24. Any communications, including emails, between the Department and any federal agencies regarding the above-named officers[;] 25. Any records of federal funding to the Department[;] 26. Any communications between the Department and POST regarding the above- named officers[;] 27. Any records of disciplinary actions regarding the above-named officers[;] 28. Any POST records regarding the above-named officers[;] 29. Any communications between the Department and the District Attorney’s Office regarding the above-named officers[;] 30. Any communications between the Department and the District Attorney’s Office regarding misconduct and civil rights complaints[;] 31. Any records of external investigations regarding the above-named officers[;] 32. Any records related to Union grievances submitted by or regarding the above- named officers[;] 33. Any Union records and communications regarding the above-named officers[;] 34. Any communications between the Union and the Department regarding the above-named officers[;] 35. Any audio recordings, transcripts, or logs of 911 calls involving the above- named officers[;] 36. Any communications between dispatch and the above-named officers during incidents[;] 37. Any records related to internal Department audits in the last five years[;] 38. Any records related to external audits or evaluations of the Department[;] 39. Any records related to disciplinary actions taken against any member of the Department from similar complaints as the above-named officers[;] 40. Any records related to the hiring of the above-named officers[;] 41. Any records related to promotion of the above-named officers[;] 42. Any records related to reassignment of the above-named officers[;] 43. Any records related to probationary periods of the above-named officers[;] 44. Any legal settlements or agreements regarding the above-named officers[;] 45. Any records related to lawsuits involving the above-named officers[;] 46. Any minutes, agendas, and notes from internal Department meetings regarding the above-named officers[;]

Chief James Lovell SPR25/0247 Page 3 February 10, 2025 47. Any minutes, agendas and notes from internal Department meetings regarding handling of public records requests, public complaints, and transparency measures[;] 48. Any minutes, agendas, and public statements from any public meetings where the Department was discussed[;] 49. Any communications and documentation related to meetings regarding complaints against the above-named officers[;] 50. Any Department policies related to use of force, body camera, internal affairs and disciplinary procedures, victim advocacy, investigations, and records retention[;] 51. Any body camera and dashcam footage related to incidents involving the above-named officers[;] 52. Any records related to the Department budget and funding for the past five years[;] 53. Any records regarding the compensation of the above-named officers for the past five years[;] 54. Any financial records related to complaints and/or lawsuits involving the above-named officers[;] 55. Any public records requests regarding the above-named officers[;] 56. Any communications and records related to handling public records request regarding the above-named officers[;] 57. Any communications sent or received by the above-named officers regarding “[your] case”[;] 58. Any records related to police investigations where the above-named officers acted as lead and/or assisting officers[;] 59. Any records related to performance evaluations of the above-named officers[;] 60. Any records related to awards, commendations, and/or recognition of the above-named officers[;] 61. Any records relating to use of force reports involving the above-named officers[;] 62. Any records related to administrative decisions signed or overseen by [identified individuals], including approvals of internal investigations, officer discipline, and promotions[;] 63. Any audio recordings of any phone calls, voicemail messages, and transferred calls, by or to the Department, regarding you[;] 64. Any recordings of in-person interactions at the Department[;] 65. Any phone call timestamps related to “[your] case”[;] 66. Any reports and internal memoranda related to “[your] case”[;] 67. Any communications related to “[your] case”[;] 68. Any logs or administrative records related to “[your] case”[;] 69. Any other records related to “[your] case”[.]

Chief James Lovell SPR25/0247 Page 4 February 10, 2025 Previous Petition This request was the subject of a previous petition from the Department. See SPR25/0220 Determination of the Supervisor of Records (January 29, 2025). In my January 29th determination, I found that the Department had established good cause for a time extension of 30 business days and that the Department may assess a fee for segregation and redaction. Concurrent with its petition to this office, the Department responded to Mr. Wiley on January 24, 2025. Objecting to the fees, Mr. Wiley petitioned this office, and this appeal, SPR25/0247, 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 - 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 2 (two) 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

Chief James Lovell SPR25/0247 Page 5 February 10, 2025 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). Current Appeal In his appeal petition, Mr. Wiley argues the following: 1. Failure to Address Requests Individually: • My public records requests were submitted as 29 distinct and specific requests, targeting separate officers, incidents, and department policies. Your decision to combine them into a single broad response undermines transparency and violates the legal requirement to treat each request individually. 2. Unjustified Fee Estimate: • The provided fee estimate, based on 20,000 hours of labor, is implausible and appears to serve as a deterrent rather than a genuine calculation. Massachusetts law (G.L. c. 66, § 10(d)) requires that fees reflect the actual time required to produce records. A breakdown of this estimate has not been provided, despite my requests for clarification. 3. Lack of Assistance to Refine Requests: • If the department finds specific requests overly broad, it is obligated under 950 CMR 32.06(1)(e) to assist in narrowing the scope to make the requests manageable. Your failure to engage in this process further demonstrates non- compliance. 4. Inadequate Explanation of Exemptions: • Blanket application of exemptions without specific justifications or a privilege log does not meet the requirements of950 CMR 32.08(4). For example, citing Exemption F for “ongoing investigations” is inapplicable if those investigations are closed or unrelated to the records requested. Requested Actions To resolve this matter, I respectfully request the following: 1. Individual Responses: • Provide separate responses to each of my 29 requests, specifying which records are available, which are withheld under specific exemptions, and the basis for each decision. 2. Revised Fee Estimate: • Provide a detailed breakdown of the 20,000-hour estimate and explain the time required for each specific task. If certain requests are overly broad, propose a revised scope and associated cost. 3. Immediate Release of Non-Exempt Records: • Release all non-exempt portions of responsive records without further delay. 4. Fee Waiver Consideration:

Chief James Lovell SPR25/0247 Page 6 February 10, 2025 • Grant a fee waiver or reduction under G.L. c. 66, § 10(d)(v), as these requests pertain to matters of significant public interest involving potential misconduct and civil rights violations. Fee Waivers 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. Please be advised, 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). Additionally, Mr. Wiley is advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. The Department’s January 24th Fee Estimate In its January 24, 2025 response, the Department provides a total fee estimate of $499,950, and provides the following information in support of its fee estimate: In this case, the lowest paid employee who has the necessary skill required to segregate and redact the records requested is a salaried employee whose effective hourly rate exceeds $25 per hour. In accordance with 950 CMR 37.02(2)(m)(l), you will not be charged for the first two (2) hours of those services and will only be charged at a rate of $25 per hour. Given the incredibly broad scope of your requests, your lack of specificity in identifying the records you seek, and the impossibility of estimating with any specificity the number of records which may be responsive to your request, the Department estimates that searching for and identifying the records you seek would take at least 10,000 hours. Additionally, once any responsive records were identified, the Department estimates that it would take another 10,000 hours to review and redact any information exempt from disclosure within the responsive records.

Chief James Lovell SPR25/0247 Page 7 February 10, 2025 Based on the nature of the records you seek, the Department estimates they would contain the information exempt from disclosure, including, but not limited to, the following bases: 1. Attorney-client privileged information 2. Information exempt from disclosure pursuant to Exemption (a) of the Public Records Law, including: a. CORI information protected by G.L. c. 6, § 167 b. Student record information protected by G.L. c. 71, § 34D and FERPA c. Personal address and telephone number information protected by G.L. c. 66, § 10B d. Communications among Union members protected by G.L. c. 150E e. Reports protected by G.L. c. 41, § 97D f. Executive session information protected by G.L. c. 30A, § 21 g. Juvenile records protected by G.L. c. 119, § 60A 3. Information exempt from disclosure pursuant to Exemption (c), including personnel file information, private information of members of the public, the disclosure of which would constitute an unwarranted invasion of personal privacy, and personal cell phone and email address information of members of the public. 4. Information related to ongoing investigations exempt from disclosure pursuant to Exemption (f) 5. Information related to Department security and emergency procedures protected by Exemption (n) 6. Home addresses, personal emails, and personal cell phone numbers of employees protected by Exemption (o). After subtracting the first two (2) hours, 19,998 hours for search, segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $499,950. Please be advised that the fee estimate may be reduced if you narrow the scope of the requests. In light of the Department’s January 24th fee estimate, and in light of Mr. Wiley indicating that he may be willing to narrow the scope of his request, I encourage Mr. Wiley and the Department to communicate directly in order to facilitate producing records more efficiently and affordably. Mr. Wiley may consider further narrowing the scope of his request to enable the Department to provide the records more efficiently and affordably. The Department must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. G. L. c. 66, § l0(a)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Mr. Wiley may file an appeal.

Chief James Lovell SPR25/0247 Page 8 February 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley James Donnelly, Esq.