Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20240774)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0774 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); SPR23/1673 Determination of the Supervisor of Records (August 3, 2023); and SPR23/1954 Determination of the Supervisor of Records (September 6, 2023). In my September 6th determination, I found it unclear if the Commission possessed records responsive to the request. On February 5, 2024, the Commission responded. Unsatisfied with the response, Mr. Wallack petition this office and this appeal, SPR24/0774, 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 SPR24/0774 Page 2 March 26, 2024 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 February 5th Response In its February 5, 2024 response, the Commission cited Exemption (d) to withhold the requested records. Appeals In his prior appeal, Mr. Wallack stated, “[t]he agency also cited exemption (d). But the records I am seeking are ‘reasonably completed factual studies or reports,’ not recommendations or opinions, which are specifically excluded from this exemption. The records I requested are simply lists of internal affairs complaints and the outcome of those complaints provided by local police departments.” (See SPR23/1190). In his current appeal, Mr. Wallack asserts, “[t]he records are lists of internal affairs complaints against law enforcement officers submitted by 400 law enforcement records [and] the bulk of the records directly from local law enforcement agencies [are] ... posted ... on the Web.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec.

Kerri L. Johnson SPR24/0774 Page 3 March 26, 2024 Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the Commission asserted the following: ... the magnitude [and] difficulty of the “[R]equest” and of those efforts has made, and continues to make, the Commission “unable” to produce records sooner, at least not without “unduly burden[ing] the other responsibilities of the” Commission. M.G.L. c. 66, § 10(b). ... the records “relat[e] to policy positions being developed by the agency” and are not “reasonably completed factual studies or reports.” Id. That is essentially for all the same reasons that Exemption (d) applied to the records in SPR09/065 and SPR06/113. As explained in the subsections below, the Commission continues to be engaged in a process of analyzing that data, reviewing it for accuracy, identifying and addressing errors, determining what the agency is legally allowed to publish to the general public, deciding how to make publication responsibly, and resolving what should be redacted accordingly. While the Commission has been appropriately invoking Exemption (d) since its first response to the Request, it elaborates on the relevant law and facts. In Section III, the Commission explains that it is also withholding such materials during its policy development process pursuant to M.G.L. c. 4, § 7, cl. 26(b) (“Exemption (b)”). In Section IV, the Commission makes clear that, when it produces records upon the completion of its policy development process, it will likely withhold certain forms of information pursuant to M.G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”) and cl. 26(c) (“Exemption (c)”), as well as any other exemptions that may appropriately be invoked. In Section V, the Commission discusses its intention to avail itself of the ability to produce the “segregable portion of [responsive] public record[s]” ... The Commission further advised, The disciplinary spreadsheets constitute both “intra-agency [and] inter-agency memoranda or letters.” Id. They were transmitted by law enforcement agencies to the Commission in response to letters from the Commission requesting the same. They have since been made available to others within the Commission. As made clear in the subsections that follow, releasing such information before the conclusion of the policymaking process could be detrimental in several ways. It could make it harder for Commission officials to engage in open and frank internal deliberations if, for example, the release of the information led to pressure

Kerri L. Johnson SPR24/0774 Page 4 March 26, 2024 from outside entities to reach a certain result. If the improper release of information carried the potential for criminal liability, civil liability, or administrative sanctions, the Commission or its officials could face exposure. If inaccurate information is released without the inaccuracy being addressed in some fashion, an officer could unfairly face reputational damage and loss of the public’s trust. Meanwhile, the public could also conclude that the Commission’s information is unreliable and could lose confidence in the new agency generally. That could render the Commission less effective in fulfilling its important public mission. Moreover, if a release included particularly sensitive information, such as personal identifying information or the fact that an individual was subject to sexual or domestic abuse, the resulting invasion of privacy could lead to consequences such as identity theft, data breaches, or psychological damage. In camera inspection In order to facilitate a determination as to the applicability of the Commission’s claims to withhold the responsive records under Exemption (d) of the Public Records Law, the Commission must provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Kerri L. Johnson SPR24/0774 Page 5 March 26, 2024 Order Accordingly, the Commission is ordered to provide this office with a representative sample of an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack