Keith Jensen v. Municipal Police Training Committee (SPR 20231309)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1309 Cassandra Cahill Records Analyst Municipal Police Training Committee 42 Thomas Patten Drive Randolph, MA 02368 Dear Ms. Cahill: I have received the petition of Keith Jensen appealing the response of the Municipal Police Training Committee (Committee) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2022, Mr. Jensen requested the following: [1.] The Number of MPTC owned/run facilities, their purpose, and the addresses. [2.] Number of state employed and contracted instructors. Their names, rank/title. [3.] Of the above (number 2) the name and department for which they work if, in addition to being instructors for the MPTC, they are also active-duty peace officers. [4.] The 2022 MPTC budget. [5.] The total number of cadets that entered, and the total number that graduated the MPTC program from 2020 through present. (5/3/23) [6.] The MPTC enrollment schedule for all locations. [7.] The [eligibility] requirements for the MPTC Program. [8.] Length of time in the MPTC program required for a cadet to become an officer. [9.] What specialties, certifications, accreditations are available from the MPTC to cadets, as well as continuing education for sworn officers? [10.] Number of hours required by the MPTC [curriculum] for the following: Driving Defensive [Tactics] Massachusetts General Laws Constitutional Law Ethics Investigation [11.] Overview on the cadet placement process. [12.] Overview of the new officer probationary period / field training process. (Length of time, evaluation method/process) 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

Cassandra Cahill SPR23/1309 Page 2 June 29, 2023 [13.] What if any national or state implemented standards / accreditations are followed by the MPTC. The Committee provided a response on May 25, 2023. Unsatisfied with the response, Mr. Jensen petitioned this office, and this appeal, SPR23/1309, 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, § l0A(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. 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 Committee’s May 25th Response In its May 25, 2022 response, the Committee stated: this request falls outside the scope of the Public Records Law. The Public Records Law applies only to pre-existing records of an agency that are responsive to a request and does not apply to requests that require a public agency to answer questions or to create new records. Some of your questions necessitate answers which: (a) are available to the public on our website; (b) are not available in pre-existing records; (c) would require the MPTC to create new records; and (d) broach matters in which the MPTC is not involved and has no responsive records. Current appeal In his appeal, Mr. Jensen states, “[the Committee] characterizes my questions with four statements but fails to attribute [their] statements to any of my questions, specifically… If the requested information falls within the definition of publicly available, it must generally be

Cassandra Cahill SPR23/1309 Page 3 June 29, 2023 provided when requested, subject to certain exceptions and exemptions outlined in the law, all of which speak to confidentially concerns… I am having difficulty understanding how any of my inquiry items might not fall under public records law.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based on the Committee’s response and Mr. Jensen’s appeal, is unclear if the Committee possesses any records responsive to the 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Committee must clarify this matter. To the extent that the requested records exist, I find the Committee must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Committee is ordered to provide Mr. Jensen with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Mr. Jensen may appeal the substantive nature of the Committee’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Keith Jensen