Shawn Wiley v. Danvers, Town of - Police Department (SPR 20251318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 14, 2025 SPR25/1318 James Lovell Police Chief Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: On May 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). On April 28, 2025, Mr. Wiley requested copies of the following records concerning an identified Danvers police officer: [1] Employment History and Promotions: Dates of employment and service records[;] Records of promotions, including dates and positions attained[;] Performance evaluations and commendation[;] [2] Disciplinary Actions and Investigations: Records of any internal affairs investigations involving [an identified] Sergeant[;] Disciplinary actions taken, including reprimands, suspensions, or terminations[;] Complaints filed against [an identified] Sergeant, whether by colleagues or members of the public[;] [3] Training and Certifications: Records of completed training programs and certifications[;] Attendance at professional development or continuing education courses[;] [4] Correspondence and Reports: Any correspondence related to [an identified] Sergeant conduct or performance[;] Reports or memos authored by or concerning [an identified] Sergeant. 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 SPR25/1318 Page 2 May 14, 2025 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. 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

Chief James Lovell SPR25/1318 Page 3 May 14, 2025 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 $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

Chief James Lovell SPR25/1318 Page 4 May 14, 2025 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, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law, the Department argues the following in support of its request to charge for segregation and redaction under Exemptions (c): Any records responsive to Parts 1, 2, and 3 of the Request are located in [an identified Sergeant’s] personnel file. [an identified Sergeant’s] personnel file consists of 186 pages. The Department estimates that much of [an identified Sergeant’s] personnel file consists of information exempt from disclosure pursuant to Exemption (c) of the Public Records Law, including, but not limited to, personal phone numbers, personal email addresses, home address information, personal banking information, social security numbers, and exempt personnel file information, such as performance evaluations. 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. However, the Department is reminded that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). 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). Mr. Wiley may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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).

Chief James Lovell SPR25/1318 Page 5 May 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley James Donnelly, Esq.