Todd Wallack v. Massachusetts Peace Officer Standards and Training Commission (SPR 20230031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0031 Randall E. Ravitz, Esq. General Counsel 100 Cambridge Street, 14th Floor Boston, MA 02114 Dear Attorney Ravitz: I have received the petition of Todd Wallack, of WBUR, 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 November 18, 2023, Mr. Wallack requested the following: [1] The commission’s disciplinary database of offices, compiled from data submitted by law enforcement agencies across the state. [2] Any documentation for the database, such as a record layout or data dictionary. The Commission responded on January 6, 2023, requesting additional time to provide responsive records, and indicating it did not possess responsive records. Unsatisfied with the Commission’s response, Mr. Wallack appealed, and this case was opened as a result. 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). 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. Att’y 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 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

Randall E. Ravitz, Esq. SPR23/0031 Page 2 January 24, 2023 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. Current Appeal In his appeal petition, Mr. Wallack states that he “wish[es] to appeal a denial by the POST Commission ... to a Nov. 18, 2022 request.” The Commission’s January 6th Response In its January 6, 2023 response, the Commission states that “the Commission does not currently have an existing disciplinary database of officers, compiled from data submitted by law enforcement agencies across the state, in the Commission’s custody.” Please note that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation with this office on January 23, 2023, the Commission confirmed that it does not possess records responsive to Mr. Wallack’s request. Conclusion Where the Commission has confirmed that it does not possess records responsive to Mr. Wallack’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack