Keith Jensen v. Municipal Police Training Committee (SPR 20232177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2023 SPR23/2177 Charmagne Pearson Records Division Municipal Police Training Committee 42 Thomas Patten Drive Randolph, MA 02368 Dear Charmagne Pearson: I have received the petition of Keith Jensen appealing the response of the Municipal Police Training Committee (Committee/MPTC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2023, Mr. Jensen requested “the instructor assignments / schedule for all MPTC training and instruction activities for the calendar year of 2022 and 2023.” The Committee responded on August 24, 2023, stating the it “does not currently possess or maintain any responsive records.” Unsatisfied with the Committee’s response, Mr. Jensen appealed, and this case 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); 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 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 SPR23/2177 Page 2 September 27, 2023 custodian must provide the responsive records. Current Appeal In correspondence included with his appeal petition, Mr. Jensen contends that “a reasonable person would believe the MPTC operates in a similar fashion to a school or college, where a schedule is set, and those in-charge of teaching / instructing are assigned, and this information is maintained, for example, on a single document or two, or three.” He goes on to provide the following additional clarification of the information he seeks: In plain terms: For all MPTC facilities: From January 1, 2022 to today (8/24/23) - The instruction / courses that were scheduled and taught, and who was the instructor / teacher. From ... (8/24/23) to 12/31/23 - What instruction / courses are scheduled, and who has been assigned to teach / instruct? The Committee’s August 24th Response In its August 24, 2023 response, the Committee states the following: Please be advised the MPTC does not currently possess or maintain any responsive records. Instructor information is not consistently tied to courses in our digital records. The Committee is advised that 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). Further, the Committee is advised that under the Public Records Law, if an agency is not in possession of a requested record, the written response shall “identify the agency or municipality that may be in possession, custody or control of the public record sought, if known.” G. L. c. 66, § 10(b)(iii). Based on the Committee’s response, it is unclear whether the Committee is in possession of records responsive to Mr. Jensen’s request. It is also uncertain whether the Committee is able to identify an agency or municipality that would be in possession of such records. The Committee must clarify these matters.

Charmagne Pearson SPR23/2177 Page 3 September 27, 2023 Conclusion Accordingly, the Committee is ordered to provide Mr. Jensen with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Keith Jensen