Shawn Wiley v. Peace Officer Standards and Training Commission (SPR 20251991)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2025 SPR25/1991 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/POST) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2025, Mr. Wiley requested: [1] All records that [an identified individual] submitted to the POST Commission between August 2023 and April 2025, including but not limited to: [a] Emails and attachments from [the individual’s] email address(es), [b] Videos, screenshots, or documentation provided by [the individual or on the individual’s] behalf. [2] Any written acknowledgment, logs, summaries, or reviews by POST Commission staff indicating which of [the] submitted materials were reviewed. [3] The video(s) referenced involving [an identified individual], particularly any video POST received from Danvers Police, or any internal memo referencing such video. [4] All documentation POST received or reviewed related to the alleged CID referral, including: [a] The original transmittal from Danvers PD, [b] Internal POST notes or correspondence referencing CID, [c] Any determination POST made about the sufficiency of that referral. [5] All final summary assessments, findings, or closure justifications related to [the] complaints. [6] Copies or descriptions of all tangible, nonverbal materials received or reviewed by the POST Commission from Danvers Police or any related entity in connection with this matter … 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. SPR25/1991 Page 2 July 22, 2025 [7] Any record or communication from Danvers Police to POST confirming that the case was forwarded to the Criminal Investigations Division (CID), as claimed in the final paragraph of the police report signed by [an identified individual]. [a] If no such CID referral, investigation, or documentation exists, please affirmatively state that no CID case number, file, or follow-up was ever created or submitted to POST. [b] If POST accepted the CID referral as factual without verifying its existence, please confirm whether POST’s internal review assumed that referral to CID had occurred. [8] Any internal POST communication, memo, or case handling note indicating what was relied upon to confirm that a thorough or adequate investigation had occurred, and whether that determination was made solely based on the written police report or accompanying verbal representations by the department. Prior Appeals A similar request was the subject of prior appeals. See SPR25/1357 Determination of the Supervisor of Records (May 29, 2025) and SPR25/1693 Determination of the Supervisor of Records (June 27, 2025). In my June 27th determination, I encouraged the parties to communicate further to facilitate producing records efficiently and affordably. The Commission responded on July 9, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/1991, was opened as a result. 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).

Evert Fowle, Esq. SPR25/1991 Page 3 July 22, 2025 The Commission’s July 9th Response In its July 9, 2025 response, the Commission assessed a fee of $3,375.00 to provide the responsive records. The Commission detailed its fee estimate as follows: Task Estimated Time 1. The Commission will retrieve 600 video/audio recordings and (600 x 410 images. It will then review, analyze, and assess the 10) + potential public records for necessary redactions. The (410 x 2) Commission estimates it will take an average of about ten = 6,820 minutes per video and two minutes per image for a minutes Commission staff member to review, analyze, and apply (rounded necessary redactions required by law. That is, some of the down to information may require more time for review, and some may 113 require less time. While many of the videos are short, several hours) are over twenty minutes long. Of particular note, these materials include minors in the home environment and would likely require significant redactions. The Commission will retrieve 200 call logs, notes, complaint reviews, and additional logs created in relation to the nine 200 x 5 = complaints filed by Shawn Wiley. It will then review, analyze, 1,000 and assess the potential public records for logs responsive to minutes your requests. .” The Commission estimates it will take an (rounded average of about five minutes per log for a Commission staff down to member to review, analyze, and apply necessary redactions 16 required by law. That is, some of the information may require hours) more time for review, and some may require less time. None of this time is allocated to searching for the records. 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 nondisclosable 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

Evert Fowle, Esq. SPR25/1991 Page 4 July 22, 2025 reviewing and redacting similar records in responding to numerous requests. 2. Review, research, and analysis by reviewing attorney(s) will 10 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 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 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

Evert Fowle, Esq. SPR25/1991 Page 5 July 22, 2025 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”). 3. Total: $3,375 113 hours + 16 hours + 10 hours = 139 hours 139 hours – 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 135 hours 135 hours x $25/hour = $3,375 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 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). Reasonableness of the Fee Estimate Although the Commission has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 139 hours of employee time, the

Evert Fowle, Esq. SPR25/1991 Page 6 July 22, 2025 Commission has not provided sufficient explanation of why 139 hours of employee time is necessary. Specifically, the Commission must clarify how it requires five minutes to review each call log responsive to the request. For the reason discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fee of $3,375.00.00 assessed in its July 9, 2025 estimate is consistent with G. L. c. 66, § 10(d). Additionally, Mr. Wiley has objected to the Commission’s claims that the responsive records contain material exempt from disclosure under the Public Records Law. I find that these matters cannot be addressed at this time, as the contents of these records are unclear. Once responsive records are provided, Mr. Wiley may appeal the substantive nature of the Commission’s response within ninety calendar days. See 950 C.M.R. 32.08(1). 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