Anastasia E. Lennon v. Peace Officer Standards and Training Commission (SPR 20230943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2023 SPR23/0943 Kerri Johnson Records Access Officer Peace Officer Standards and Training Commission 100 Cambridge Street, 14th Floor Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Anastasia Lennon, of the New Bedford Light, appealing the response of the Peace Officer Standards and Training Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2023, Ms. Lennon requested: All data the New Bedford Police Department has submitted to the [Commission] as required by state law…in its [resubmission] of disciplinary records….This may include officer name; hire date; date of start of employment; date of complaint; internal affairs investigation number; whether there was an administrative or criminal investigation into the alleged misconduct; any charge(s), infraction(s) or violation(s); case disposition; administrative leave; and discipline/disciplinary action. The Commission responded on May 2, 2023. Unsatisfied with the response, Ms. Lennon petitioned this office and this appeal, SPR23/0943, 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). 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 Johnson SPR23/0943 Page 2 May 22, 2023 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 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 May 2nd Response In its May 2, 2023 response, the Commission states that the requested spreadsheet is under review by the Commission and therefore falls within Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). The Commission also states that redactions would need to be made pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Pending Litigation 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. Please be advised that this office has reviewed the trial court’s docket and verified that the civil litigation relating to the records at issue in this appeal is active and ongoing in the Suffolk Superior Court. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Superior Court Docket No. 2284CV00906). In a letter to this office on June 23, 2022 regarding SPR22/1395 and certain other matters related to the POST Commission, an attorney for the Commission argues that “there are, in fact, relationships between the pending litigation, the types of documents sought by [the requester], and the issue of whether such documents constitute public records.” Among other things, the Commission further argues that “the parties to the litigation have addressed, and the presiding judge has inquired about, whether certain documentation submitted to the Commission by law enforcement agencies would constitute public records.” The Commission goes on to argue that “the discussion necessarily implicates, and the court may be called upon to decide, larger issues of whether personnel and investigatory records provided to the Commission by law enforcement agencies are subject to production in response to public records requests.”

Kerri Johnson SPR23/0943 Page 3 May 22, 2023 Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I also decline to opine on the applicability of Exemptions (a), (c), (d), and (f) to the requested records. It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Anastasia Lennon