Thong, William v. Peabody, City of - Police Department (SPR 20260747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 18, 2026 SPR26/0747 Captain Douglas S. Marcus Records Access Officer Peabody Police Department 6 Allen’s Lane Peabody, MA 01960 Dear Captain Marcus: I have received the petition of William Thong appealing the response of the Peabody Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 13, 2026, Mr. Thong requested “the Peabody Police internal affair investigation involving [a specified police officer]. The off-duty incident occurred on 3/15/19 at Salisbury Beach which involves an assault and battery. Also, include the surveillance video and or digital evidence of the incident captured on surveillance camera.” The Department responded on March 2, 2026. Unsatisfied with the Department’s response, Mr. Thong petitioned this office, and this appeal, SPR26/0747, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response to this office and Mr. Thong on March 6, 2026. Fee Estimates - Municipalities A municipality 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). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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 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

Captain Douglas S. Marcus SPR26/0747 Page 2 March 18, 2026 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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). Current Appeal In his appeal petition, among other things, Mr. Thong argues the following: 1. Order the Peabody Police Department to waive all fees, as its response was untimely under M.G.L. c. 66, § 10(b) and 950 CMR 32.06(3), and as fees for redaction are not authorized under 950 CMR 32.07; 2. Reject the Department’s 8-hour time estimate as unreasonable and unsupported, and direct the Department to comply promptly without further delay or cost to the requester; The Department’s March 2nd and March 6th Responses In its March 2, 2026 response, the Department provides a total fee estimate of $150, and in its March 6, 2026 response, provides further information in support of its fee estimate. In its March 2nd response, the Department explains the following: The department has identified records pertaining to this request. Please be advised per Massachusetts Public Records Law, some of these records may be withheld and portions of records that will be released will need to be redacted, specifically the following: • Per Massachusetts Public Records Law Exemption (c) any disciplinary documents will need to be withheld. These are documents that contain a notice from the disciplining authority to the involved officer advising of the disciplinary decision. The court ruled in Worcester Telegram & Gazette v Chief of Police of Worcester, that the nature and character of these documents makes it a part of the core category of personnel information that is useful in making employment decisions regarding the employee. • The department identified 2 videos in our possession related to this request. The department intends to withhold these videos as these records hold potential evidence of a crime. Although no charges have been filed at the time of this letter, the statute of limitations has not tolled and therefore requires the department to not release this evidence. The department cites Public Records Exemption (b) as the proper performance of necessary government functions as the release of these videos will not allow this matter to be properly handled in the court system. The department cites Public Records Laws Exemption (c) as these videos will identify potential victims and witnesses. This will constitute an unwarranted invasion of

Captain Douglas S. Marcus SPR26/0747 Page 3 March 18, 2026 personal privacy. Furthermore, Exemption (c) also is cited as it could result in personal embarrassment to individuals identified in these videos. The department also cites Public Records Laws Exemption (f) as these are investigatory materials whereby disclosure of these materials will result in a prejudicial prosecution of this case should the victim determine that they support the issuance of court charges. The release of these videos would not allow the rules of court discovery to be adhered to. • Any department disciplinary actions contained within records will need to be redacted per Massachusetts Public Records Law Exemption (c). • The department will need to make redactions to these records in accordance with the Public Records Law Exemption (A) which specifically identifies any records divulging name, home, phone numbers, social security numbers and driver’s licenses. Redactions will be made in accordance with Public Records Law Exemption (C) which specifically applies to “personnel and medical files or information and any other materials or data relating to a specifically named individual. These records may include information such as names, dates of birth, faces, medical information, and motor vehicle plates. Disclosure may reveal private information, unwanted intrusions, and may increase the risk of theft or identity fraud • The department will need a time extension in addition to the 10 business days allotted under Massachusetts Records Laws in order to produce these records. The department intends to produce these records within 25 business days of the original request date of February 13, 2026. The reason for additional time for the department to produce said records includes: • The department will need to properly compile, examine, segregate, and redact these records to satisfy this records request. The department has determined that the time needed to compile, examine, segregate, and redact these records will take a minimum of 8 hours. The department per Massachusetts General Laws can charge a fee of $25 per hour to comply with this request. The department intends to charge you for a minimum of 6 hours as the first 2 hours per M.G.L. cannot be charged by the department. Therefore the department will be charging a minimum fee of $150. 00 to comply with this request. The department will advise you if more fees are necessary if more time is needed for this request. • The department would like to suggest a reasonable modification in the scope of this request or would like to assist in modifying this request which in doing so will enable the department to produce the records more efficiently and affordably. Please contact the department either directly or through Next Request to coordinate this modification in the request. Additionally, in its March 6th response, the Department further explains the following: • In reference to addendum one “The Department’s response was untimely” o The requester sent his records request through the city software application named “Next Request”. This site is not administered and controlled by the police department in any way as the department responds to requests on this site within

Captain Douglas S. Marcus SPR26/0747 Page 4 March 18, 2026 the allotted time frame required by Massachusetts Public Records Laws. The site is handled by a 3rd party that the department has no direct control over the release of documents to the requester. As stated the department received this request via Next Request software on February 13, 2026. The department attached our response letter on the site on March 2nd, 2026 (10th business day). The department conducted its business in a manner consistent with Public Records Law and in no way attempted to circumvent this requirement. The department in good faith released the record to the software site with the intention of the record being released on the same business day. • In reference to addendum two “The department may not charge fees for redaction” o The department contends that according to Massachusetts Public Records Laws, segregation and redaction fees can only be if either (a) required by law or (b) approved by the supervisor through a petition. In this case, the records contain information that by law the department shall not release. The department cites the following which is consistent with this manner: 1. Per Massachusetts Public Records Law Exemption (c) any disciplinary documents will need to be withheld. These are documents that contain a notice from the disciplining authority to the involved officer advising of the disciplinary decision. The court ruled in Worcester Telegram & Gazette v Chief of Police of Worcester, that the nature and character of these documents makes it a part of the core category of personnel information that is useful in making employment decisions regarding the employee. 2. The department has records involved in this request of police reports involving criminal charges that the department is required to withhold. These are records that contain criminal offender record information (CORI). The department contends that these police reports contain records and data that have been compiled by a Massachusetts criminal justice agency whereby concern an identifiable individual and relate to the nature or disposition of the criminal charge. This information is also contained in several other records within this internal investigation that our department has in its possession. The CORI information referenced does not relate to the individual that was the target of the internal investigation. Therefore it is also not in the public interest for the requester to receive this information. 3. The department stated that redactions to these records in accordance with the Public Records Law Exemption (A) which specifically identifies any records divulging name, home, phone numbers, social security numbers and driver’s licenses. Redactions will be made in accordance with Public Records Law Exemption (C) which specifically applies to “personnel and medical files or information and any other materials or data relating to a specifically named individual. These records may include information such as names, dates of birth, faces, medical information, and motor vehicle plates. Disclosure may reveal private information, unwanted intrusions, and may increase the risk of theft or identity fraud. The release of this information, violates personnel privacy of individuals who were victims and witnesses and other involved persons that were

Captain Douglas S. Marcus SPR26/0747 Page 5 March 18, 2026 not the target of the department’s internal investigation should not be released. Although this information is in public records, these redactions are no way an attempt to conceal information of an internal investigation. • In reference to addendum three “The claimed 8-hour complication time is unreasonable and appears designed to obstruct. o The department is required by Massachusetts Records Laws to estimate this effort prior to completing said work and the department has done that in good faith. o In reference to the requester’s statement of “The inflation of the time-estimate and the corresponding fee appears to be a strategy to burden and deter this request”, the department contends that the segregation and redaction of these records can only be done by an official of the rank of captain or higher. Per Massachusetts Records Laws the department could have requested permission from the Supervisor of Records to charge a higher fee that the statute permits a fee of $25 per hour as the normal hourly salary of a captain is over $80 per hour. The department did not initiate this request. The department has routinely requested and been granted permission to charge higher than the $25 statute fee from the Supervisor of records several times per year in the past for records requests that are consistent with this request. o The department also wrote in the March 2nd letter that if the requester would like to discuss a reasonable modification the department was willing to do so and the requester has not exercised this option. • In reference to addendum four “Withholding of the Internal Affairs Investigation File is Overbroad” o The department in the March 2nd letter stated “some of these records may be withheld and portions of records that will be released will need to be redacted.” The letter only referenced the disciplinary decision and not the remaining internal affairs file. The department also only intended to withhold the two videos. The crutch of the required legal redactions are in the internal affairs report along with police reports contained within. o The incident occurred in 2019, however the department contends that this is the first public request for these files therefore the department is in good faith is attempting to release these files consistent to all Massachusetts Public Records Laws. The police department intends to release the body of reports of the internal investigation consistent with what the department has addressed above. • In reference to addendum five “Withholding of Surveillance video is unjustified” o These surveillance videos were obtained from the Salisbury Police Department and the video was in their possession as part of their criminal investigation. The videos were shared with our department only to assist our department in conducting an internal investigation. The sharing of these videos was to [sic] restricted to this reason and not for the intent of public disclosure. Our department intends to release the internal investigation to the requester and this internal investigation clearly outlines observations and actions contained in the videos and thus the release of these videos is not consistent with public interest.

Captain Douglas S. Marcus SPR26/0747 Page 6 March 18, 2026 o The department also cites Public Records Laws Exemption (f) as these are investigatory materials whereby disclosure of these materials will result in a prejudicial prosecution of this case should the victim determine that they support the issuance of court charges. The release of these videos would not allow the rules of court discovery to be adhered to. The videos have potential evidence of a crime and thus our department intends to withhold these videos. Although no charges have been filed at the time of this letter, the statute of limitations has not tolled and therefore this situation dictates that our department cannot release this evidence. o The department cites Public Records Exemption (b) as the proper performance of necessary government functions as the release of these videos will not allow this matter to be properly handled in the court system. o The department cites Public Records Laws Exemption (c) as these videos will identify potential victims and witnesses. This will constitute an unwarranted invasion of personal privacy. Furthermore, Exemption (c) also is cited as it could result in personal embarrassment to individuals identified in these videos. These videos have materials that relate to specifically named individuals whereby disclosure may constitute an unwarranted invasion of personal privacy. The footage depicts a violent assault involving identifiable private individuals and documented injuries, which include a broken nose and a concussion. The department interprets the privacy interests here to be significant. The requester was not involved in the incident, and there is no identifiable public interest in evaluating police conduct or government decision-making. • The department after further inspection of these records determined it is in possession of several still computer printed photographs that were obtained from still shots of these videos. The department contends the following: o These photos were ultimately generated from the videos obtained from the Salisbury Police Department. The videos were shared with our department only to assist our department in conducting an internal investigation. The sharing of these or any content of these videos was restricted to this reason and not for intent of public disclosure. The internal investigation that our department intends to release clearly describes the contents of these photographs thus the release of these photographs would not be consistent with serving the public interest. o The department also cites Public Records Laws Exemption (f) as these are investigatory materials whereby disclosure of these materials will result in a prejudicial prosecution of this case should the victim determine that they support the issuance of court charges. The release of these photographs would not allow the rules of court discovery to be adhered to. o The department intends to withhold these photographs as these records hold potential evidence of a crime. Although no charges have been filed at the time of this letter, the statute of limitations has not tolled and therefore requiring the department to not release this evidence. o The department cites Public Records Exemption (b) as the proper performance of necessary government functions as the release of these videos will not allow this matter to be properly handled in the court system.

Captain Douglas S. Marcus SPR26/0747 Page 7 March 18, 2026 o The department cites Public Records Laws Exemption (c) as these photographs will identify potential victims and witnesses. This will constitute an unwarranted invasion of personal privacy. Furthermore, Exemption (c) also is cited as it could result in personal embarrassment to individuals identified in these photographs. These photographs have materials that relate to specifically named individuals whereby disclosure may constitute an unwarranted invasion of personal privacy. These photographs depict a violent assault involving identifiable private individuals and documented injuries, which include a broken nose and a concussion. The privacy interests here are significant. The requester was not involved in the incident, and there is not an apparent public interest in evaluating police conduct or government decision-making. Reasonableness of the Fee Estimate The Department’s fee estimate response is timely. G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where Mr. Thong sent his records request on February 13, 2026, and the Department initially responded on March 2, 2026, by providing a fee estimate under G. L. c. 66, § 10(b), I find the Department may assess a fee to produce responsive records. Where the Department provided a response within 10 business, it is necessary to review the reasonableness of the Department’s fee estimate. In its fee estimate, the Department has confirmed that it is assessing fees at a rate equal to or less than that of the lowest paid employee with the necessary skills to perform the required tasks, and has confirmed that it is not assessing fees for the first two hours of work. However, based on the Department’s response, it appears to be assessing a fee for redaction under Exemptions (b), (c), and (f) of the Public Records Law. 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 Department may assess a fee for segregation and redaction pursuant to Exemption (a) and the attorney-client privilege, the Department is not permitted to assess a fee for segregation and redaction under Exemptions (b), (c) and (f). Further, although the Department indicates that “the time needed to compile, examine, segregate, and redact these records will take a minimum of 8 hours,” it is unclear why the Department requires this amount of time to produce the records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is

Captain Douglas S. Marcus SPR26/0747 Page 8 March 18, 2026 allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Please note that where the Department has yet to provide records, I am unable to opine on any withheld records or the application of any exemptions the Department may cite at this time. The Department is reminded that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Thong 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. Thong may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: William Thong