Thomas V. Ralph v. Peace Officer Standards and Training Commission (SPR 20240285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2024 SPR24/0285 Kerri Johnson Records Officer Police Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Thomas V. Ralph, Esq. appealing the response of the Police 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 November 16, 2023, Attorney Ralph requested the following: [1.] Copies of any public records requests submitted for Peace Officer Standards and Training (POST) Commission Records for [an identified individual], including the agency/entity that requested the records, the person who submitted said public records request and the date of said request. [2.] Any emails in the possession of the POST Commission that discuss or reference [an identified individual]. The Commission provided responses on November 29, 2023 and on December 11, 2023. Unsatisfied with the Commission’s responses, Attorney Ralph petitioned this office and this appeal, SPR24/0285, 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 SPR24/0285 Page 2 February 9, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. See 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 November 29th and December 11th responses In its November 29, 2023 response, the Commission stated, “[w]e received your request for public records, it is currently being reviewed and assessed, please allow us additional time to respond with your requested records.” In its December 11, 2023 response, the Commission stated, “I reached out to our IT department to run a search of the name . . . to make sure we thoroughly search our records. I will be in touch soon with the results.” Current Appeal In his appeal, Attorney Ralph states, “… [the Commission] has failed to respond to the public records request within the statutory time frame.” Attorney Ralph further states, “…I ask that you find [the Commission’s] denial/non-responsiveness is unwarranted under the public records laws and that [the Commission] should provide the requested records.” Timeliness of providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Kerri Johnson SPR24/0285 Page 3 February 9, 2024 Where Attorney Ralph submitted his request on November 16, 2023, it is unclear why the Commission has not provided the responsive records. 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Consequently, I find the Commission must provide an estimated date as to when it intends to complete the search and provide the outstanding records. To the extent possible, the Commission must provide responsive records on a rolling basis. Conclusion Accordingly, the Commission is ordered to provide Attorney Ralph with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Attorney Ralph may appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Thomas V. Ralph, Esq.