Todd Wallack v. Massachusetts Peace Officer Standards and Training Commission (SPR 20240481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0481 Kerri Johnson Records Access Officer Massachusetts Peace Officer Standards & Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Ms. Johnson: I have received the petition of Todd Wallack appealing the response of the Peace Officer Standards & 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 January 11, 2024, Mr. Wallack requested the following: Spreadsheets the Massachusetts State Police sent to the POST Commission with disciplinary data on both current offices and former/transferred officers. Those records are described on the POST Commission website... [He is] seeking copies of both the original set of spreadsheets the State Police originally submitted in 2021 and early 2021, as well as the updated spreadsheets due in 2023. The Commission responded on January 19, 2024, providing a fee estimate. Objecting to the fees, Mr. Wallack 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 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 SPR24/0481 Page 2 February 29, 2024 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. Fee Estimates - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Commission’s January 19th Fee Estimate In its January 19, 2024 response, the Commission provides a total fee estimate of $750. The redactions applied to the published disciplinary records on the Commission’s website occurred after a migration of data. Thus, any redaction to the original submissions by law enforcement agencies, which your records request requires, would need to be applied anew. The Commission must review and redact the submissions sent by the Massachusetts State Police, and it expects to withhold the following information: • Any information that constitutes criminal offender record information (CORI) pursuant to M.G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”) in light of M.G.L. c. 6, § 167, et seq., governing the dissemination of CORI. • Any report of domestic violence or sex offenses that are not subject to disclosure

Kerri Johnson SPR24/0481 Page 3 February 29, 2024 pursuant to M.G.L. c. 41, § 97D or M.G.L. c. 41, § 98F. These statutes operate through Exemption (a). • Any information the disclosure of which would violate a person’s right against unreasonable, substantial, or serious interference with privacy under M.G.L. c. 214, § 1B. This, too, operates thought Exemption (a). • Any reference to date of birth of any individual pursuant to the exemption provided under M.G.L. c. 4, § 7, cl. 26(c) (“Exemption (c)”), applicable to “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The provision does carve out an exception for “records related to a law enforcement misconduct investigation.” However, questions could be raised about the extent to which this new exception was intended to apply to information of the type referenced above. Thus, the Commission would take the cautious approach of redacting such information. If you have questions or concerns about the Commission’s approach, you are invited to discuss the matter with us. • Any reference to a medical condition or private information that is non-public under Exemption (c)... Additionally, the Commission provides the following chart concerning the tasks and estimated time involved: Task Estimated Time 1. Review, analyze, and assess the records. There are over 900 900 rows rows in the spreadsheets. The Commission estimates it will x 2 sheets take an average of about one minute per row for a = 1800 rows Commission staff member to review, analyze, and apply redactions required by law. 2. Review, research, and analysis by reviewing attorney(s). 4 hours 3. Total: $750 900 rows x 2 sheets = 1800 rows 1800 minutes + 240 minutes = 2040 minutes (34 hours) 34 hours - 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 30 hours 30 hours x $25/hour = $750 As noted above, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Please note that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also “required by law.” Accordingly, while the Commission may be permitted to assess a fee for segregation and redaction pursuant to

Kerri Johnson SPR24/0481 Page 4 February 29, 2024 Exemption (a), the Commission is not permitted to assess a fee for segregation and redaction under Exemption (c). Additionally, the Commission is advised that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). Also, it is unclear why the Commission requires one minute per row to review the responsive records. The Commission must provide further details regarding the contents of the records and why it would take one minute to review each row of data. Further, it is my understanding that copies of the records Mr. Wallack seeks have previously been released by the Department of State Police, without the redactions under Exemption (a) described in the Commission’s fee estimate. Consequently, it is unclear why it is necessary for the Commission to expend time reviewing the responsive records for the redactions described in its fee estimate. For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Commission is ordered to provide Mr. Wallack with a response to the 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: Todd Wallack