Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20231954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2023 SPR23/1954 Kerri L. Johnson Records Access Officer Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Peace Officer Standards and Training Commission (Commission) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On May 11, 2023, Mr. Wallack requested the following records: Copies of any spreadsheets/data law enforcement agencies sent to the POST Commission since November 2021, reporting the names and disciplinary information about both current and former officers. This includes both the original data POST required and the more recent submissions. Previous Appeals This request was the subject of previous appeals. See SPR23/1190 Determination of the Supervisor of Records (June 20, 2023) and SPR23/1673 Determination of the Supervisor of Records (August 3, 2023). In my August 3rd determination, I ordered the Commission to provide Mr. Wallack with a response to his request. On August 17, 2023, the Commission responded. Unsatisfied with the Commission’s response, Mr. Wallack petitioned this office and this appeal, SPR23/1954, 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 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 SPR23/1954 Page 2 September 6, 2023 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 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 August 17th Response In its August 17, 2023 response, the Commission states: The Commission again states that it is not “den[ying] access to records,” 950 CMR 32.06(3). Rather, it is “suggest[ing] a reasonable modification of the scope of the request [and] offer[ing] to assist the requester to modify the scope of the request[, as] doing so would enable the agency…to produce records sought more efficiently and affordably.” 950 CMR 32.06(2)(g). Specifically, the Commission is working towards providing you with a comprehensive spreadsheet containing disciplinary record data received in response to the Commission’s request to law enforcement agencies earlier this year. This spreadsheet will aggregate information for all law enforcement officers, and it will list individual complaints along with information regarding the allegations made and the discipline imposed with respect to each one. The Commission expects to provide this spreadsheet to you in approximately one week. The Commission asks that you directly provide it with a response to its proposal. Should it prove necessary for the Commission to further explain its assertion of exemptions following your consideration of its proposal, it stands ready to do so. Current Appeal In his appeal, Mr. Wallack asserts: As a reminder, I requested copies of the lists of misconduct allegations compiled by local police departments and provided to the commission. The Commission has in turn combined some of the information into a separate database that was posted online today. But that database does not contain all the information in the original reports submitted by local law enforcement agencies. Therefore, I am continuing to pursue my original request for public records.

Kerri L. Johnson SPR23/1954 Page 3 September 6, 2023 I ask that the Supervisor of Records order the POST Commission to provide the documents I requested. If the agency plans to redact the documents, I ask that the POST Commission please explain what it plans to redact and how that information is exempt under state law. Based on the Commission’s response, in conjunction with Mr. Wallack’s appeal, it is unclear if the Commission possesses 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). To the extent that records exist, I find the Commission 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). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). This office encourages Mr. Wallack and the Commission to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Commission is ordered to provide Mr. Wallack with a response in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Wallack may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack