Keith Jensen v. Municipal Police Training Committee (SPR 20231614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1614 Charmagne Pearson Records Analyst Municipal Police Training Committee 42 Thomas Patten Drive Randolph, MA 02368 Dear Ms. Pearson: 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, 2023, 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

Charmagne Pearson SPR23/1614 Page 2 July 25, 2023 [13.] What if any national or state implemented standards / accreditations are followed by the MPTC. Prior Appeal This request was the subject of a previous appeal. See SPR23/1309 Determination of the Supervisor of Records (June 29, 2023). In my June 29th determination, I found that it was unclear if the Committee possessed any records responsive to the request. The Committee responded on July 12, 2023. Unsatisfied with the response, Mr. Jensen petitioned this office and this appeal, SPR23/1614, 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 July 12th Response In its July 12, 2023 response, the Committee provided records with regard to Items 1, 4, 5, 6, 7, 8, 10, 11, 12, and 13. With regard to Items 2, 3, and 9, the Committee stated, “[n]o responvie record exists with this information.” Current appeal In his appeal, Mr. Jensen states, “[m]y appeal relates to items number one, two, and three, specifically. All other items have been satisfied. For number one, I … need a direct response as to whether or not there are any additional properties owned, maintained, or used by the MPTC other than the five academies listed on the web page I was directed to… For items two and three, the requested information is the name and title of employees and contractors that work for the state of Massachusetts and its municipalities.”

Charmagne Pearson SPR23/1614 Page 3 July 25, 2023 Regarding Item 9, Mr. Jensen states, “I… wish to have the complete list of the certifications that are offered to Massachusetts recruit officers and sworn officers, above and beyond the basic academy curriculum.” In an email sent to this office dated July 19, 2023, the Committee stated: In question 1, the original request was for “the Number of MPTC owned/run facilities, their purpose, and the addresses.” In the requester’s [appeal petition], he amends the scope of the question to cover all properties owned, used, or maintained by the MPTC. This is a new question that is broader and more subjective. In question 2 and 3, the requester asks for a record of state-employed and contracted instructors, their names, their title and rank, and the police department they work for if they are active-duty police officers. The MPTC does not have a record of MPTC instructors and their active-duty status, rank, title, and employing organization because the MPTC is not the custodian of external employment information. For question 9, the MPTC has no responsive records. The MPTC is responsible for the development, delivery, and enforcement of minimum training standards for law enforcement officers within the oversight of the MPTC. The MPTC does not directly issue certifications or accreditations. Item 1 In Mr. Jensen’s May 3rd original request, he requested “[t]he Number of MPTC owned/run facilities, their purpose, and the addresses.” In his July 12th correspondence, Mr. Jensen appears to expand his request and states that “. . . please confirm if those five facilities are in-fact the only properties owned, used, or maintained by the MPTC. My request was for the address and function of all MPTC owned, used, or maintained properties. not just the academies. If there are any other properties owned, used, or maintained by the MPTC please provide their purpose and addresses.” Mr. Jensen is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. If Mr. Jensen would like to obtain copies of these records, Mr. Jensen is advised that he should make a separate public records request to MPTC’s RAO. Mr. Jensen may then appeal the substantive nature of MPTC’s response within ninety calendar days. See 950 C.M.R. 32.08(1); see also Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees

Charmagne Pearson SPR23/1614 Page 4 July 25, 2023 will be able to understand exactly what they are looking for, and then make a prompt production.”). Items 2, 3, and 9 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). Conclusion Accordingly, where the Committee has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Jensen is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Keith Jensen