Shawn Wiley v. Peace Officer Standards and Training Commission (SPR 20251357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2025 SPR25/1357 Evert Fowle, Esq. Counsel Peace Officer Standards and Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Attorney Fowle: I have received the petition of Shawn Wiley appealing the response of the Peace Officer Standards and Training Commission (Commission) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). From April 28, 2025 to May 6, 2025, in six separate requests, Mr. Wiley sought the following: [Request 1] All emails, including attachments, sent by [an identified individual] to any employee, officer, or representative of the Massachusetts POST Commission from January 1, 2024, through April 15, 2025. . . [Request 2] . . . [C]opies of the following public records related to [an identified] POST [employee’s] . . . internal characterization of [an identified individual] as “paranoid” in connection with [two identified] POST [complaints] . . . as noted in the POST Commission internal notes dated October 25, 2024: [1] All internal or external communications, emails, notes, messages, memos, or drafts authored, co-authored, reviewed, or received by [an identified individual] as or [an identified individual] as, from August 1, 2023 to present, containing or referring to: [a] [An identified] name . . .[;] [b] [Two identified] Case numbers . . . or related case numbers, [c] Descriptors . . .[;] [2] Any records, justifications, or evaluations used to support or inform [an identified individual’s] comment on October 25, 2024, that “the complainant may be paranoid,” . . . .[;] [3] All training materials, guidelines, policies, or procedures governing: [a] How POST staff are to document or characterize complainants[;] 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

Evert Fowle, Esq. SPR25/1357 Page 2 May 29, 2025 [b] An y restrictions or cautions around making psychological, behavioral, or credibility assessments without formal evaluation or direct interaction[;] [c] POST’s compliance with ADA Title II or Section 504 when handling citizen complaints from individuals with medical or psychiatric conditions (real or perceived)[;] [4] Any internal complaints, human resources files, disciplinary records, performance reviews, or bias-related incidents involving [an identified individual] . . . [Request 3] . . . [A]ll public records related to POST Commission’s review of the video evidence . . . submitted as part of . . . [four identified] complaints . . . . Specifically . . . : [1] A copy of the specific video(s) reviewed by POST staff, or documentation regarding which videos were reviewed and which were not accessed due to format, corruption, or expiration[;] [2] Any written notes, internal summaries, logs, or correspondence referencing the content of the videos, especially in relation to: [a]The interview conducted with the accused at Danvers Police Department[;] [b]The police report submitted by [an identified] Officer . . . and reviewed by [an identified] Chief . . .[;] [c] Any discrepancies, contradictions, or omissions observed between the video content and the Danvers PD report[;] [3] A copy of any internal memos, review summaries, or comparison documents that highlight findings, conclusions, or limitations POST staff reached in relation to the submitted video evidence[;] [4] Any communication with Danvers Police Department, Essex County DA, or internal parties at POST regarding the interpretation or evidentiary value of the video(s). [Request 4] . . . [A]ll materials submitted by the Danvers Police Department to the Massachusetts POST Commission in relation to [an identified ] POST Complaint Case . . . : [1] A full and complete copy of the police report, narrative, or incident report submitted by Danvers PD in [an identified] Case . . . that closed any external investigation[;] [2] A copy of the original email or transmittal communication from Danvers PD to POST. . .[;] [3] A complete list and copies of **all documents** provided by Danvers PD in this submission . . .[;] [4] Any POST internal findings, summaries, or assessments that were made in reference to these submitted documents, especially anything used to justify the case closure[;] [5] Clarification of what was actually investigated in [an identified] Case .

Evert Fowle, Esq. SPR25/1357 Page 3 May 29, 2025 . . whether POST independently reviewed the submitted documents or relied solely on DPD’s framing. [Request 5] . . . [A]ll records, documents, evidence, correspondence, and investigatory materials received by the Massachusetts POST Commission from the Danvers Police Department that were used to evaluate, respond to, or justify the closure of [two identified] POST Complaint [cases] . . . . Specifically . . . : [1] A complete copy of all documents POST received from Danvers Police that were represented as evidence of a thorough investigation into [an identified] complaint[;] [2] Any emails, attachments, officer statements, videos, transcripts, IA reports, or case notes provided by DPD to POST to demonstrate that [the] allegations were adequately investigated . . .[;] [3] Any internal POST notes, review memos, or correspondence stating that DPD’s investigation was “sufficient,” “complete,” or “substantiated” in any form[;] [4] Any indication that POST reviewed independently submitted material . . . or assessed whether DPD conducted follow-up . . .[;] [5] If POST conducted no additional review beyond accepting DPD’s submission, please confirm that no independent evaluation was performed beyond the material sent from Danvers Police. [Request 6] [1] Any and all records POST received from the Danvers Police Department regarding the alleged referral of this case to CID . . .[;] [2] All internal POST correspondence or meeting notes reflecting the decision to accept the Danvers Police Department’s assertion that this matter was investigated by CID[;] [3] Records POST received or requested that pertain to the scope, timeline, and closure of any CID review—if it occurred[;] [4] Any explanation or internal procedural documentation POST used to determine it would not investigate further or request the above from DPD. The Commission responded on May 12, 2025, providing a fee estimate. Unsatisfied with the response, and objecting to the fees, Mr. Wiley petitioned this office and this appeal, SPR25/1357, 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).

Evert Fowle, Esq. SPR25/1357 Page 4 May 29, 2025 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). 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 May 14, 2025 petition to this office, Mr. Wiley objects to the Commission’s fee estimate. Specifically, Mr. Wiley contends, “distinct requests must be treated individually” and argues the following: [Request 1] was a discrete, self-contained request focused only on records where [an identified individual is] the sender, which are plainly identifiable by my email addresses. The POST Commission improperly aggregated this request with five other, separately submitted requests — each with different scopes, dates, and subjects — and responded with a single fee estimate totaling $16,575 and an estimated 667 hours of work. . . . My [six] requests were: . . . [s]ubmitted across multiple days, . . . [r]equested wholly different records (emails, training materials, internal memos, evidence reviews), . . . [a]nd did not overlap in scope or require concurrent review.

Evert Fowle, Esq. SPR25/1357 Page 5 May 29, 2025 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 Commission’s May 12th Fee Estimate In its May 12, 2025 response, the Commission provided a total fee estimate of $16,575 and explained that, “[b]ased on the Commission’s experience dealing with previous public records requests for similar records, it anticipates redacting. . .” the responsive records pursuant to Exemptions (a), (b), (c), (e), (j), (o), (p) of the Public Records Law, as well “[a]ny material that is protected by the attorney-client privilege.” Under Exemption (a), the Commission specifically cited, “M.G.L. c. 150E, §§ 1, 5A(d). . . and M.G.L. c. 66, § 10B[,]” Criminal Offender Record Information (CORI), and “M.G.L. c. 41, § 97D; M.G.L. c. 41, § 98F; . . . M.G.L. c. 209A, § 8; M.G.L. c. 258B, § 3(h), (w); and/or M.G.L. c. 265, § 24C[.]” The Commission also advised that it will redact, “[a]ny information . . . under M.G.L. c. 214, § 1B.” Further, in its May 12th fee estimate, the Commission provided the following chart: Task Estimated Time 1. The Commission will retrieve 11,834 call logs, notes, complaint 11,834 logs x 2 reviews and additional logs created by [two identified minutes =23,668 individuals] . . . between August 1, 2023 and April 29, 2025. It minutes (394 hours) will then review, analyze, and assess the potential public records for references to [an identified individual], the related case numbers, and “any subjective psychological or behavioral language” to the extent that such a standard is reasonably capable of being applied. The Commission estimates it will take an average of about two minutes per log for a Commission staff member to review, analyze, and apply necessary redactions required by law. That is, some of the information may require more time for review, and some may require less time. The Commission will retrieve 620 emails between January 1, and April 15, 2025, that refence [sic] [an identified email address] or [an identified email address] and 168 emails from [an identified (620 + 168) x 20 individual] or [an identified individual] that reference [an minutes = 15,760 identified name][,] “paranoid,” “delusional,” “irrational,” or minutes (262 hours) “obsessive.” It will then review, analyze, and assess the potential public records for necessary redactions. The Commission anticipates that these emails will include large attachments that will take a significant amount of time to review, analyze, and assess for necessary redactions. The Commission estimates it will take an average of about twenty minutes per email for a Commission staff member to review, analyze, and apply necessary redactions required by law. That is, some of the

Evert Fowle, Esq. SPR25/1357 Page 6 May 29, 2025 information may require more time for review, and some may require less time. The amount of time needed results from a combination of factors. First, there are several types of potentially redactable information to look for in the records, as discussed above. Second, determining whether a particular item of data implicates a certain statute might, in some cases, call for a review and application of legal sources, and deliberation. And third, the technical steps in making redactions take a certain amount of time. Significantly, the above estimate is based on the Commission’s considerable experience in reviewing and redacting similar records in responding to numerous requests. 2. Review, research, and analysis by reviewing attorney(s) will also 11 hours be required. This process includes checking to ensure that any redactions, and all other aspects of the Commission’s response, are consistent with the Public Records Law and any other sources of law that provide a basis for withholding information. The process might require the analysis of statutory, regulatory, and case law, and application of such sources of law to the form of data at issue. It might also require reaching out to other Commission personnel to obtain more information regarding the Commission’s records. 3. Total: 11,834 logs x 2 minutes per record = 23,668 minutes (394 hours) $16,575 788 emails x 20 minutes per email = 15,760 minutes (262 hours) Legal review (11 hours) 394 hours + 262 hours + 11 hours = 667 hours 667 hours - 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 663 hours 663 hours x $25/hour = $16,575 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. 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) and the attorney-client privilege, the Commission is not permitted to assess a fee for segregation and redaction under Exemptions (b), (c), (e), (j), (o), and (p).

Evert Fowle, Esq. SPR25/1357 Page 7 May 29, 2025 Although the Commission estimates that the process of compiling, reviewing, and preparing requested records requires 667 hours, it is not clear from the Commission’s estimate how much of this time is allocated to search, and how much time is allocated for segregation or redaction of the records. Further, although the Commission “estimates it will take an average of about twenty minutes per email for a Commission staff member to review, analyze, and apply necessary redactions required by law[,]” it is uncertain why the Commission requires this much time to segregate and/or redact each email. The Commission must clarify how many pages there are per email, including attachments and provide additional information regarding the tasks involved in producing the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Commission also indicates that it will assess a fee for “[r]eview, research, and analysis by reviewing attorney(s),” However, it is unclear how the Commission may assess a fee for this under G. L. c. 66, § 10(d)(iii). Accordingly, the Commission must provide additional information explaining how this task constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). The Commission must also clarify whether the $25 per hour rate it assessed as part of its fee estimate is that of the lowest-paid employee capable of performing the tasks necessary to produce the requested records. 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 additionally encourages Mr. Wiley 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. Wiley with a response to his 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 the response to this office at pre@sec.state.ma.us.

Evert Fowle, Esq. SPR25/1357 Page 8 May 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley