Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250421)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0421 James Lovell Police Chief Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: On February 12, 2025, this office received the petition of James Donnelly, Esq., of Murphy, Hesse, Toomey & Lehane, LLP, on behalf of the Danvers Police Department (Department) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Shawn Wiley. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In two separate requests on January 29, 2025, Mr. Wiley requested: [1] A detailed breakdown of all expenses incurred by the Danvers Police Department in responding to [an identified individual’s] public records requests, including: Legal fees or retainers paid to external legal counsel[;] Salaries, overtime, or other compensation paid to staff or officers for time spent handling my records requests[;] [a]dministrative costs, including fees for document retrieval, copying, or redaction[;] [r]ecords showing the funding source(s) used for these expenses (e.g., departmental budget allocations, grants, or external funding)[;] [2] Documentation of the total number of hours spent by Danvers Police Department personnel, including attorneys and administrative staff, in responding to [an identified individual’s] public records requests[;] [3] Copies of internal and external communications (emails, memos, or meeting notes) regarding: [t]he handling and processing of my public records requests[;] [a]ny decisions to appeal, delay, or deny portions of my requests;] 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 SPR25/0421 Page 2 February 14, 2025 [c]orrespondence with legal counsel or other external entities concerning [an identified individual’s] requests[;] [4] Records showing any budget adjustments or reallocations made to address the costs associated with responding to public records requests, specifically mine[;] [5] Documentation of any discussions or decisions regarding the financial impact of these requests on departmental operations[;] [6] Records justifying the fee estimates provided to me for fulfilling my requests, including itemized calculations and supporting documentation[;] [7] Copies of contracts, agreements, or retainer arrangements with external legal counsel (e.g., Murphy, Hesse, Toomey & Lehane, LLP) regarding public records requests, including: [h]ourly billing rates for legal services[;] [i]nvoices and itemized billing statements for services provided in connection with my [an identified individual’s] public records requests[;] [d]ocumentation of any reimbursements or public funds used for these expenses[;] [8] Copies of correspondence (emails, memos, or letters) between the Danvers Police Department and external legal counsel regarding: [m]y public records requests and their handling [;] [s]trategies for denial, delays, exemptions, or appeals[;] [9] Internal communications discussing my requests, including meetings or discussions involving officers, administrative staff, or IT personnel[;] [10] Documentation of the time allocated by department personnel to handle my public records requests, including: [l]ogs of hours worked by staff members[;] [r]oles and responsibilities of personnel involved in the processing, review, or communication regarding my requests[;] [11] Minutes, agendas, or notes from any meetings where my public records requests were discussed, including those involving: [i]nternal department staff[;] [e]xternal legal counsel[;] [e]xternal consultants or agencies[;] [12] Copies of any policies, procedures, or guidelines used by the Danvers Police Department for: [p]rocessing public records requests[;] [r]eviewing and determining exemptions or redactions[;] [e]ngaging legal counsel or consultants related to public records requests[;] [p]ublic communications regarding the department’s approach to transparency and compliance[;] [13] Records showing any expenses related to technology and software used to process public records requests, including: [s]ystems used for storing, retrieving,

Chief James Lovell SPR25/0421 Page 3 February 14, 2025 or redacting documents and emails[;] IT support costs associated with fulfilling requests[;] [14] Documentation of any training, workshops, or seminars attended by Danvers Police Department staff on public records laws, transparency, or compliance in the past five years[;] [15] Records documenting appeals, complaints, or disputes regarding public records requests received by the Danvers Police Department in the past five years, including: [t]he number of denied requests and reasons for denial[;] [o]utcomes of appeals or cases requiring the release of additional records[;] [16] Records showing the total number of public records requests received by the department over the past three years, including: [t]he number of requests processed, denied, and appealed[;] [a]verage response times for fulfilling requests [;] [17] Documentation of any public funds used for public relations efforts tied to public records requests or legal disputes, including: [p]ayments to PR firms, consultants, or contractors[;] Public statements or media communications regarding transparency or handling of public records requests[;] [18] Copies of any audits, reviews, or evaluations conducted on the Danvers Police Department’s compliance with public records laws, including: [f]indings or recommendations for improvement[;] [a]ny documentation of corrective actions taken by the department[.] Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure.

Chief James Lovell SPR25/0421 Page 4 February 14, 2025 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Department requests an extension of 30 business days and provides the following information in support of its request: Given the volume of potentially responsive records which require detailed review and redaction, the Department submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, the Department hereby petitions for an extension of time to respond to the request. Additionally, the employee who will perform the search and recovery, segregation and redaction process has many other responsibilities which they cannot ignore. In light of the need to collect, segregate and examine the records, as well as the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 30 business days. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial

Chief James Lovell SPR25/0421 Page 5 February 14, 2025 purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 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). Petition to Assess Fees In its petition, the Department requests to charge fees for segregation and redaction of the responsive records and argues the following in support of its request: [T]he Department will need to review and redact approximately ten pages of legal bills from MHTL and approximately 100 email communications regarding the requester’s extensive history of public records requests dating back to November 2024 of attorney-client privileged information. Moreover, the Department will need to review and redact all information exempt from disclosure from all public records requests submitted to the Department, as well as all information exempt

Chief James Lovell SPR25/0421 Page 6 February 14, 2025 from disclosure from all responses to public records requests issued by the Department over the last three years. The Department anticipates that these records contain private email address and cell phone information of public records requesters protected by Exemption (c), investigatory materials submitted by public records requesters in the midst of ongoing investigations exempt from disclosure pursuant to Exemption (f), as well as CORI information exempt from disclosure pursuant to Exemption (a) and G.L. c. 6, § 167. In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Department has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. See G. L. c. 66, § 10(d)(iv). Further, this office encourages the requestor and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, Mr. Wiley has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley