Andrew Quemere v. Peace Officer Standards and Training Commission (SPR 20230830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 11, 2023 SPR23/0830 Kerri L. Johnson Records Officer Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Andrew Quemere appealing the response of the Peace Officer Standards and Training Commission (Commission) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On March 24, 2023, Mr. Quemere requested, “[a]ll spreadsheets submitted by law-enforcement agencies to the POST Commission for inclusion in the commission's disciplinary record database.” The Commission responded on April 26, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0830, 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) (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 is based…”); 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). 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

Kerri L. Johnson SPR23/0830 Page 2 May 11, 2023 The Commission’s April 26th Response In its April 26, 2023 response, the Commission claimed Exemption (d) of the Public Records Law to withhold the requested records in their entirety. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). In its response, the Commission asserted, “... the requested spreadsheets are currently under review by the Commission. As such, they currently fall within “the deliberative process exemption” applicable to “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency” other than “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” M.G.L. c. 4, § 7, cl. 26(d).” The Commission further asserted, “... the records submitted to the Commission are in ‘draft’ form and are being reviewed for accuracy with the goal of publication in a database being developed by the Commission.” In a conversation between an attorney of the Public Records Division and the Commission, the Commission advised that the requested records are related to pending litigation. Pending litigation In a supplemental response dated June 23, 2022 for similar public records requests, the Commission notes there is pending litigation, where related records are the subjects of the dispute in active litigation. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Suffolk Superior Court Docket No.2284CV00906).

Kerri L. Johnson SPR23/0830 Page 3 May 11, 2023 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere