Shawn Wiley v. Massachusetts Peace Officer Standards and Training Commission (SPR 20251693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2025 SPR25/1693 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). In six separate requests between April 28, 2025 and May 6, 2025, Mr. Wiley requested: [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. SPR25/1693 Page 2 June 27, 2025 [b] Any 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[;]

Evert Fowle, Esq. SPR25/1693 Page 3 June 27, 2025 [5] Clarification of what was actually investigated in [an identified] Case … 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] Any and all records POST received from the Danvers Police Department regarding the alleged referral of this case to CID …[;] [1] 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[;] [2] Records POST received or requested that pertain to the scope, timeline, and closure of any CID review—if it occurred[;] [3] Any explanation or internal procedural documentation POST used to determine it would not investigate further or request the above from DPD. Prior Appeal This request was the subject of a prior appeal. See SPR25/1357 Determination of the Supervisor of Records (May 29, 2025). In my May 29th determination, I ordered the Commission to revise its assessed fee or provide further explanation of how its assessed fee was consistent with G. L. c. 66, § 10(d). The Commission responded on June 12, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/1693, was opened as a result.

Evert Fowle, Esq. SPR25/1693 Page 4 June 27, 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 June 12th Response In its June 12, 2025 response, the Commission assessed a fee of $18,875.00 to provide the responsive records. The Commission detailed its fee estimate as follows: Task Estimated Time 1. The Commission will retrieve 11,834 call logs, notes, 11,834 complaint reviews and additional logs created by [two logs x 2 identified individuals] between August 1, 2023 and April minutes = 29, 2025. It will then review, analyze, and assess the 23,668 potential public records for references to [an identified minutes individual], the related case numbers, and “any subjective (rounded psychological or behavioral language” to the extent that down to such a standard is reasonably capable of being applied. The 394 Commission estimates it will take an average of about two hours) 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. None of this time is allocated to searching for the records. The Commission will retrieve 620 emails between January (3,329 + 1, and April 15, 2025, that refence [sic] [two identified 3,911) x 2

Evert Fowle, Esq. SPR25/1693 Page 5 June 27, 2025 email addresses]. These 620 emails total 3,329 pages. It will minutes = also retrieve 168 emails, which total 3,911 pages, from [two 14,480 identified individuals] that reference [five identified search minutes terms]. It will then review, analyze, and assess the potential (rounded public records for necessary redactions. The Commission down to estimates it will take an average of about two minutes per 241 page for a Commission staff member to review the page of hours) text, analyze that page for redactions that are required by law, and apply the necessary redactions required by law. That is, some of the information may require more time for review, and some may require less time. None of this time is allocated to searching for the records. Within those 788 emails, the Commission will need to retrieve 600 videos and 410 images. It will then review, analyze, and assess the potential public records for (600 x 10) necessary redactions. The Commission estimates it will take + (410 x an average of about ten minutes per video and two minutes 2) = 6,820 per image for a Commission staff member to review, minutes. analyze, and apply necessary redactions required by law. (rounded That is, some of the information may require more time for down to review, and some may require less time. While many of the 113 videos are short, several are over twenty minutes long. Of hours) particular note, these materials include minors in the home environment and would likely require significant redactions. 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 11 hours also 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

Evert Fowle, Esq. SPR25/1693 Page 6 June 27, 2025 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. The sources of authority governing public records implicitly recognize that an agency may assess fees for such work by: (1) allowing it to charge for “segregation or redaction [that] is required by law,” M.G.L. c. 66, § 10(d)(ii); 950 CMR 32.07(2)(d), (2)(l)2.; (2) defining “Segregation Time” as “[t]he time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges,” as opposed to “time expended to review record for accuracy and correct errors,” 950 CMR 32.02; and (3) and defining “Redact” as “[t]o delete, or otherwise expurgate that part of a public record that is exempt from disclosure under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges from non-exempt material,” id. While many tasks can be performed by a non-lawyer alone, the type of legal work referenced above calls for attention by an attorney at law. See, e.g., M.G.L. c. 221, § 46A; Mass. R. Prof. C. 5.3 & cmts., 5.5 & cmts., 8.4 & cmts.; In re Hrones, 457 Mass. 844, 849-57 (2010). Accordingly, the Commission expects that that a nonattorney will perform as much of the preparatory work as is appropriate, but will need to refer certain matters that require substantive legal analysis to a Commission attorney. Indeed, the Supervisor’s Office appears to handle matters the same way. That office has non-attorneys perform certain administrative tasks, but it assigns attorneys to review matters and has an attorney sign decisions. See SPR25/0006 (Jan. 16, 2025) (appearing to accept the validity of the same explanation offered by the Commission in response to another public records request, by stating, “the Commission has provided an explanation of the tasks involved in its fee estimate and has explained that the amount of time described in its fee estimate is reasonable”).

Evert Fowle, Esq. SPR25/1693 Page 7 June 27, 2025 This time is separate from the time stated in task 1, and it is necessary in order for the Commission to accurately apply necessary redactions required by law. 3. Total: $18,875 11,834 logs x 2 minutes per record = 23,668 minutes (394 hours) 7240 pages x 2 minutes per page = 14,480 minutes (241 hours) (600 videos x 10 minutes per video) + (410 images x 2 minutes per image) = 6,820 minutes (113 hours) Legal review (11 hours) 394 hours + 241 hours + 113 hours + 11 hours = 759 hours 759 hours - 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 755 hours 755 hours x $25/hour = $18,875 The Commission stated that the responsive records likely contained information exempt from disclosure pursuant to Exemptions (a), (b), (c), (e), (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); M.G.L. c. 265, § 24C, M.G.L. c. 6E, § 8(c)(2); and M.G.L. c. 66A, §§ 1-3. The Commission confirmed that it was assessing a fee for only those redactions which are required by law. The Commission further stated that no employee with the skill necessary to produce the requested records was compensated at a rate less than $25.00 per hour. 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

Evert Fowle, Esq. SPR25/1693 Page 8 June 27, 2025 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). Modification of the Request In light of the Commission’s response, I encourage Mr. Wiley and the Commission to communicate further in order to facilitate producing records efficiently and affordably. Mr. Wiley may wish to narrow the parameters of the request or include additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Commission must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I will now consider this administrative appeal closed. If issues remain after the parties communicate further, Mr. Wiley may file a further appeal within ninety (90) days. See 950 C.M.R 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley