Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20241533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1533 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/0481 Determination of the Supervisor of Records (February 29, 2024). In my February 29th determination, I found that the Commission must revise its fee estimate or provide further explanation of how the assessed fees are consistent with the Public Records Law. Subsequently, following further communication with Mr. Wallack, the Commission responded on March 13, 2024. Unsatisfied with the Commission’s response, Mr. Wallack further 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 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 SPR24/1533 Page 2 June 4, 2024 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. 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. The Commission’s March 13th Response In its March 13, 2024 response to Mr. Wallack, the Commission states the following: In your February 19 email, you shared records that you obtained from the Massachusetts State Police. In your email you asked, “Are these the same spreadsheets the State Police sent you (except for the redaction of dates of birth)[?]” The Commission now confirms that it is in possession of these attachments from the Massachusetts State Police. Current Appeal In his appeal petition, Mr. Wallack contends the following: The commission confirms that I have received the bulk of the records I requested from the Department of State Police, but has so far declined to provide one column that is missing from the records I requested. The missing column shows the dates of birth for start police officers. The name alone is insufficient here because many police officers in the state have the same first and last name. . . . The agency did not cite any exemptions in its latest response. As a reminder, exemption (c) does not apply to any records related to police misconduct[.] Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Commission’s March 13th response, it is unclear which exemption the Commission is citing in order to withhold or redact the requested records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any

Kerri Johnson SPR24/1533 Page 3 June 4, 2024 records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, based on the Commission’s March 13th response, it is unclear which specific records the Commission intends to withhold or redact. The Commission must identify the records, categories of records, or portions of records it intends to withhold or redact. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 (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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack