Shawn Wiley v. Peace Officer Standards and Training Commission (SPR 20251555)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2025 SPR25/1555 Evert Fowle, Esq. Counsel Peace Officer Standards & 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 a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 15, 2025, Mr. Wiley requested: [1] A complete copy of any and all internal documentation, policies, manuals, or workflow instructions describing how the POST Commission performs redaction of records responsive to public records requests, including any redaction software currently used (e.g., Adobe, CaseGuard, Microsoft Purview, or any custom or third-party software). [2] Any procurement contracts, licenses, or vendor agreements entered into by the POST Commission from January 1, 2020 to present relating to redaction software, public records automation tools, or digital information governance. [3] Any internal email correspondence or memos dated between January 1, 2023 and April 30, 2025 that reference redaction procedures, fee estimate generation, or the specific keyword-based record request filed by [an identified individual] under SPR25-1357. [4] A copy of any training materials or guidance documents (including slides, handbooks, or job aids) distributed to POST personnel or records access officers regarding public records response and redaction, in effect at any time since January 2023. The Commission responded on May 30, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/1555, was opened as a result. 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. SPR25/1555 Page 2 June 6, 2025 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Commission’s May 30th Response In its May 30, 2025 response, the Commission assessed a fee of $1,900.00 to provide the responsive records. The Commission detailed its fee estimate as follows: Task Estimated Time 1. The Commission will identify and retrieve “internal 9 Hours documentation, policies, manuals or workflow instructions” and “training materials or guidance documents” relating to how the POST Commission performs redactions for records relating to public records requests. Additionally, it will identify and retrieve relevant contracts and/or licenses responsive to the request. The Commission will review, analyze, and assess the potential public records. The Commission estimates it will take nine hours for a Commission staff member to segregate, 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 168 emails from January 1, 168 * 20 2024, and April 15, 2025, [two identified individuals] that minutes = reference [an identified individual],” “paranoid,” 56 hours

Evert Fowle, Esq. SPR25/1555 Page 3 June 6, 2025 “delusional,” “irrational,” or “obsessive.” It will then review, analyze, and assess the potential public records for redactions required by law. The Commission anticipates that these emails will include large attachments that will take a significant amount of time to review, analyze, and assess for redactions required by law. The Commission estimates it will take an average of about twenty minutes per email for a Commission staff member to review, analyze, and apply 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 additional emails and 10 Hours memorandums for the portion of the “specific keyword based record request filed by [an identified individual] under SPR25-1357” that falls outside of the time range referenced in SPR25-1357, that is memorandums and emails from January 1, 2023 to December 31, 2023 and from April 16, 2025 to April 30, 2025. Additionally, it will identify and retrieve emails and memorandums responsive to your request for records regarding redaction procedures and fee estimate generation. The Commission anticipates it will take ten hours for a staff member to review, analyze and apply redactions required by law. The amount of time needed results from a combination of factors. First, the records will need to be evaluated to determine if they are responsive. Second, there are several forms of information made non-disclosable by law that the Commission will need to look for in the records, as discussed above. Third, determining whether a particular item of data implicates a certain source of law might, in some cases, call for a review and application of legal sources, and deliberation. And fourth, 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. One or more attorneys will undertake review and any 5 hours necessary research and analysis. This process includes checking to ensure that any redactions, and all other aspects of the Commission’s response, are consistent with the

Evert Fowle, Esq. SPR25/1555 Page 4 June 6, 2025 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: $1,900 9 + 56 +10 + 5 = 80 80 hours - 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 76 hours 76 hours x $25/hour = $1,900 The Commission further stated that the responsive records likely contained information exempt from disclosure pursuant to Exemptions (a), (b), (c), (d), (j), and (o) of the Public Records Law, as well as the attorney-client privilege. The Commission cited the following statutes under Exemption (a): M.G.L. c. 150E, §§ 1, 5A(d); M.G.L. c. 66, § 10B; M.G.L. c. 6, § 167, et seq.; M.G.L. c. 214, § 1B; 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 M.G.L. c. 265, § 24C. Although the Commission has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 80 hours of employee time, the Commission has not provided sufficient explanation of why 80 hours of employee time is necessary. The Commission must clarify how it requires 80 hours to review, segregate, and redact the responsive records. In particular, the Commission must explain how it requires twenty minutes to segregate and redact each requested email communication. The Commission must also provide additional information regarding the number of pages it possesses which are responsive to the request, including how many pages it possesses per email communication, including any attachments. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Commission has also indicated that it will assess a fee for “… analysis of statutory, regulatory, and case law, and application of such sources of law … [and] reaching out to other Commission personnel to obtain more information[.]” It is unclear how the Commission may assess a fee for this task 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). Additionally, it appears from the Commission’s response that it plans to redact the responsive records under the attorney-client privilege and Exemptions (a), (b), (c), (d), (j), and (o) of the Public Records Law. Under the Public Records Law a fee may 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 pursuant to a petition under G. L. c. 66, § 10(d)(iv). See

Evert Fowle, Esq. SPR25/1555 Page 5 June 6, 2025 G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Consequently, the Commission must clarify if the fee assessed includes time necessary to redact records under Exemptions (b), (c), (d), (j), and (o). Further, the Commission must clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fee of $1,900.00 assessed in its May 30, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Wiley and the Commission to communicate further 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 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. Mr. Wiley may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley