John E. Nelson v. Massachusetts Peace Officer Standards and Training Commission (SPR 20220312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2022 SPR22/0312 Lon Povich, Esq. Anderson & Kreiger LLP 50 Milk Street, 21st Floor Boston, MA 02109 Dear Attorney Povich: I have received the petition of John Nelson of the Massachusetts Coalition of Police appealing the response of the Massachusetts Peace Officer Standards and Training Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2022, Mr. Nelson requested: any and all agendas, minutes, audio/video recordings, attendance lists, emails and/or correspondence, relating to sub-committee or working group meetings involving attendance by any commissioner since inception of the POST Commission. Please include above requested material for any meeting involving attendance of commissioners where discussion of POST matters occurred, no matter what title or term was used for said proceeding. The Commission provided an initial response on February 1, 2022. Unsatisfied with the Commission’s response, Mr. Nelson petitioned this office and this appeal, SPR22/0312, was opened as a result. While this appeal was pending, the Commission provided a supplemental response on February 17, 2022. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Lon Povich, Esq. SPR22/0312 Page 2 February 23, 2022 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission’s February 17th response In its February 17, 2022 response, the Commission explained, “[t]o date there have been five sets of meetings relating to the Commission’s drafting and approval of guidelines or regulations. Similarly, none of those meetings has ever been attended by more than the three Commissioners assigned to work on such projects.” The Commission clarified that there were certain meetings held in the Spring of 2021 but “[t]here are no agendas, minutes, recordings, and the like relating to those meetings.” The Commission further stated that for meetings held in June, July, November and December of 2021, minutes are “. . . available on the POSTC website.” In a February 21, 2022 letter, Mr. Nelson states: [The Commission] reveals that so-called “sub-sets” of the Commission have undertaken multiple “substantive projects for the Commission.” [It] explains that there have been the following five sets of meetings corresponding to the work of the “sub-sets” on these substantive projects: . . . [The Commission] asserts that with respect to most of these meetings, no “agendas, minutes, recordings, and the like” exist. . . . But it is not clear whether there are “agendas, minutes, recordings, and the like” for some of the meetings. If there are “agendas, minutes, recordings, [or] the like” relating to any of the meetings, they should be provided immediately. Based on the foregoing, I find the Commission must clarify whether it possesses additional records, aside from meeting minutes, that are responsive to Mr. Nelson’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Mr. Nelson further states: More important, when identifying the records that do not exist, [the Commission] pointedly and repeatedly refers to “agendas, minutes, recordings, and the like.”

Lon Povich, Esq. SPR22/0312 Page 3 February 23, 2022 This is an attempt to narrow MassCOP’s Request- and to avoid providing any records- by redefining the types of records that MassCOP has requested. MassCOP did not request just “agendas, minutes, recordings, and the like.” It also requested “attendance lists, emails and/or correspondence” relating to the now admitted meetings. [The Commission] has not denied that such records exist, and it is inconceivable that – given the number of meetings and the important, complex, and substantive issues that were their subject - there are no attendance lists, emails, or other correspondence relating to the meetings. . . . In light of the above, I find the Commission must clarify whether it possesses additional records, particularly, “attendance lists, emails and/or correspondence” relating to the meetings. See G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). The Commission must clarify these matters. Conclusion Accordingly, the Commission is ordered to provide Mr. Nelson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Nelson Enrique Zuniga, Executive Director