Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20242398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2024 SPR24/2398 Randall E. Ravitz, Esq. General Counsel Peace Officer Standards & Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Attorney Ravitz: 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 Appeals This request was the subject of previous appeals. See SPR24/0481 Determination of the Supervisor of Records (February 29, 2024) and SPR24/1533 Determinations of the Supervisor of Records (June 4, 2024 and July 12, 2024). In my July 12th determination, I found that where the Commission was yet to produce records, I was unable to opine on any redacted records or the application of any exemptions the Commission may cite. Further, I encouraged Mr. Wallack and the Commission to communicate directly in order to facilitate providing records more efficiently and affordably. Following further communication between the Commission and Mr. Wallack, the Commission provided Mr. Wallack with a response on August 22, 2024. Unsatisfied with the Commission’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/2398, was 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

Randall E. Ravitz, Esq. SPR24/2398 Page 2 September 6, 2024 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. 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. Current Appeal In his appeal petition, Mr. Wallack contends that “[t]he agency has yet to provide any records in response to my Jan. 11, 2024 request and we have been unable to reach an agreement to resolve the matter.” The Commission’s Responses In its August 22, 2024 response, the Commission asserts that “[t]he Commission has no remaining obligations related to this matter and considers it closed.” Additionally, in a letter to Mr. Wallack and this office on August 30, 2024, the Commission argues that “the parties reached an agreement months ago, but Mr. Wallack failed to honor it.” Further, the Commission argues that “there is no genuine source of confusion and no need for a further decision.” The Commission is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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

Randall E. Ravitz, Esq. SPR24/2398 Page 3 September 6, 2024 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). Where Mr. Wallack submitted his request on January 11, 2024, and the Commission has not provided responsive records, I find the Commission has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Commission must provide an estimated date as to when it intends to complete its review and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Commission must provide responsive records on a rolling basis. 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). 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