Shawn Wiley v. Peace Officer Standards and Training Commission (SPR 20252345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2025 SPR25/2345 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. SPR25/2345 Page 2 August 26, 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 Appeal This request was the subject of a prior appeal. See SPR25/1991 Determination of the Supervisor of Records (July 22, 2025). In my July 22nd determination, I ordered the Commission to revise its fee estimate or provide further explanation of how the assessed fee was consistent with the Public Records Law. The Commission responded on August 5, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/2345, 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. SPR25/2345 Page 3 August 26, 2025 The Commission’s August 5th Response In its August 5, 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 200 x 5 = reviews, and additional logs created in relation to the nine 1,000 complaints filed by Shawn Wiley. It will then review, analyze, minutes and assess the potential public records for “[a]ny written (rounded acknowledgment[s], logs, summaries, or reviews” down to (collectively, “logs”) responsive to your requests. The 16 Commission estimates it will take an average of about five 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. This estimation is based on a brief review of the information included in the 200 referenced records. Certain parts of the records are particularly substantive and could require detailed review to determine what redactions are necessary by law. These logs include more than just memorializations of phone calls. They can include intake coordinators’ notes, complaint reviews, and internal discussions regarding the nine complaints. Furthermore, they include emails which, at times, have attachments. Finally, these logs are more substantive and thus require more time to review than an employee’s general logs, because all these logs

Evert Fowle, Esq. SPR25/2345 Page 4 August 26, 2025 relate to complaints, which generally include more redactable material. 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 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.

Evert Fowle, Esq. SPR25/2345 Page 5 August 26, 2025 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 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): G. L. c. 150E, §§ 1, 5A(d); G. L. c. 66, § 10B; G. L. c. 6, § 167, et seq.; G. L. c. 214, § 1B; G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8; G. L. c. 258B, § 3(h), (w); G. L. c. 265, § 24C; G. L. c. 6E, § 8(c)(2); and G. L. c. 66A, §§ 1-3. The Commission confirmed that it was assessing a fee for only those redactions which are required by law, and stated that no employee with the skill necessary to produce the requested records was compensated at a rate less than $25.00 per hour. In an August 21, 2025 telephone conversation with this office, the Commission clarified that the logs responsive to Item 2 of the request are typically two to three pages in length, but may contain as many as 200 pages of emails, attachments, and notes. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records:

Evert Fowle, Esq. SPR25/2345 Page 6 August 26, 2025 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 Where the Commission has explained the amount of time it requires to segregate, redact, and reproduce the requested records and confirmed that the lowest paid individual with the skill necessary to perform those tasks is paid more than $25.00 per hour, I find that the Commission has met its burden to establish that it would take this amount of time to produce the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Wiley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley