Todd Wallack v. Massachusetts Peace Officer Standards and Training Commission (SPR 20242523)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2024 SPR24/2523 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 his request for public records. See G. L. c. 66, §10A; 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, in camera review and reconsideration This request was the subject of previous appeals and an in camera review and a reconsideration. See SPR23/1190 Determination of the Supervisor of Records (June 20, 2023); SPR23/1673 Determination of the Supervisor of Records (August 3, 2023); SPR23/1954 Determination of the Supervisor of Records (September 6, 2023) and SPR24/0774 Determinations of the Supervisor of Records (March 26, 2024, June 3, 2024, and August 6, 2024). In my August 6th determination, I found that the Commission had not established that there exists ongoing inter-agency deliberations between the law enforcement agencies and the Commission. In addition, I found that despite the Commission’s response, it remained unclear how the records provided by the law enforcement agencies are not reasonably completed factual reports. The Commission responded on September 5, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/2523, was opened as a result. 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 SPR24/2523 Page 2 September 26, 2024 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. 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 September 5th Response In its September 5, 2024 response, the Commission cited Exemptions (b) and (d) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Wallack stated, “[t]he commission has taken the unusual position that disciplinary records of municipal police officers can be withheld in their entirety under exemptions (b) and (d). I understand the records contain purely factual information, not policy recommendations. And the courts have repeatedly ruled that internal affairs investigations of police officers are public records. The decision to withhold the records in their entirety is particularly puzzling since another [identified] requester has already obtained large portions of the same documents directly from local police departments and published them online.” The Commission’s September 5th response contains no new arguments nor additional information that would affect the application of Exemptions (b) and (d) to the responsive records. Order Accordingly, the Commission is again ordered to provide Mr. Wallack with a response in a manner consistent with this order, the August 6th determination described above, 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

Kerri L. Johnson SPR24/2523 Page 3 September 26, 2024 pre@sec.state.ma.us. Failure to comply with this order may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, § 10A(b). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack