Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20242944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2944 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); SPR24/1533 Determinations of the Supervisor of Records (June 4, 2024 and July 12, 2024) and SPR24/2398 Determinations of the Supervisor of Records (September 6, 2024 and October 11, 2024). In my October 11th determination, I declined to reverse my September 6th determination, and ordered the Commission to provide Mr. Wallack with a response to his request. Subsequently, the Commission responded on October 28, 2024, providing a revised fee estimate. Objecting to the fees, Mr. Wallack petitioned this office, and this appeal, SPR24/2944, 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

Randall E. Ravitz, Esq. SPR24/2944 Page 2 November 13, 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. 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 October 28th Fee Estimate In its October 28, 2024 response, the Commission provides a total fee estimate of $750. In support of its fee estimate, the Commission provides the following information: The Commission expects a project of this magnitude to take upward of 30 hours

Randall E. Ravitz, Esq. SPR24/2944 Page 3 November 13, 2024 to prepare. As explained previously, the Commission would need to expend a great deal of time and effort to compile the requested information. Also, the redactions applied to the published disciplinary records on the Commission’s website occurred only after a migration of data. Thus, should [Mr. Wallack] insist on receiving the spreadsheets originally provided by the State Police, the Commission would need to go through those spreadsheets anew and manually reapply any such redactions. The Commission anticipates redacting the following information: • Any reference to an officer’s date of birth pursuant to the exemption provided under M.G.L. c. 4, § 7, cl. 26(a), allowing the Commission to withhold records that are “specifically or by necessary implication exempted from disclosure by statute” (“Exemption (a)”), in light of M.G.L. c. 150E, §§ 1, 5A(d) (stating, “dates of birth . . . of employees . . . shall not be public records and shall be prohibited from disclosure except as provided in [M.G.L. c. 4, § 7, cl. 26(o) and (p) (‘Exemptions (o) and (p)’)]”); and M.G.L. c. 4, § 7, cl. 26(c), applicable to “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy” other than “records related to a law enforcement misconduct investigation” (“Exemption (c)”). As the Commission has explained in its prior correspondence, officer dates of birth should not be treated as records related to misconduct investigations in these circumstances. • Any information that constitutes criminal offender record information (“CORI”) pursuant to Exemption (a) in light of M.G.L. c. 6, § 167, et seq., governing the dissemination of CORI. • 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 through Exemption (a). See, e.g., Attorney Gen. v. District Attorney, 484 Mass. 260, 263, 267-74 (2020) (recognizing that a record may be exempted from disclosure “by necessary implication” where another statute “prohibits disclosure as a practical matter,” or where disclosure would subvert or undermine the legislative objectives underlying a particular statute).1 • Any victim information that the Commission, upon analysis, finds to be non- public under: Exemption (a), because it is “specifically or by necessary implication exempted from disclosure by” M.G.L. c. 41, § 97D; M.G.L. c. 41, § 98F; M.G.L. c. 66, 10B; M.G.L. c. 209A, § 8; M.G.L. c. 258B, § 3(h), (w); and/or M.G.L. c. 265, § 24C; or Exemption (c), out of an abundance of caution and taking into account the Legislature’s desire to protect victim privacy, as evinced by its enactment of the above statutes. The Commission does not understand Exemption (c)’s exception for “records related to a law enforcement misconduct investigation” to apply to private information about victims that is contained with

Randall E. Ravitz, Esq. SPR24/2944 Page 4 November 13, 2024 such records. • Any other reference to a medical condition or private information that is non- public under Exemption (c)... Regarding its anticipated redactions under Exemption (c), the Commission further explains the following: Before the adoption of Exemption (c)’s exception for “records related to a law enforcement misconduct investigation” in 2020, courts indicated that Exemption (c) “provide[d] a broader protection against disclosure than [did Section 1B],” and so, where “[Exemption (c) did] not bar inspection of [certain requested materials] . . . , [Section 1B] provide[d] no alternative legal basis to resist inspection of the requested materials.” Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 594-95 (2005). However, where Exemption (c) does apply, Section 1B should provide an additional basis to resist inspection as long as its elements are satisfied. Also, where Exemption (c) does not apply based solely on the 2020 exception for “records related to a law enforcement misconduct investigation,” as opposed to an insufficient privacy interest, an agency should not be foreclosed from invoking Exemption (a) based on Section 1B. Indeed, a contrary conclusion—that an agency might be required to release the type of information referred to in Section 1B and thereby commit a statutory tort—should be rejected as absurd. See, e.g., Conservation Comm’n v. Pesa, 488 Mass. 325, 332 (2021) (“‘Ultimately, we must avoid any construction of statutory language which leads to an absurd result, or that otherwise would frustrate the Legislature’s intent’” (quoting, without quotation and citation, Bellalta v. Zoning Bd. of Appeals, 481 Mass. 372, 378 (2019))). Additionally, the Commission provides the following chart concerning the tasks and estimated time involved: Task Estimated Time 1. Review, analyze, and assess the original spreadsheets. 900 rows There are over 900 rows in the spreadsheets. The x 2 sheets Commission estimates it will take an average of about one = 1800 rows minute per row for a Commission staff member to review, analyze, and apply necessary redactions required by law. That is, some rows may require more time for review, and some may require less time. The amount of time needed results from a combination of factors. First, several columns in the two sheets will require close review. They include: Date of Birth; Incident Type; Allegation; Classification; Sub-classification; Finding; Action Taken; Investigation Admin/Criminal; Charge(s) / Infraction/Violation; Admin Leave; Disposition; Discipline;

Randall E. Ravitz, Esq. SPR24/2944 Page 5 November 13, 2024 and Observations/Notes. Second, as discussed above, there are several types of potentially redactable information to look for in these columns. Third, determining whether a particular item of data implicates a certain statute might, in some cases, call for a review and application of legal sources, and deliberation. And fourth, the technical steps in making redactions take a certain amount of time. Significantly, the above estimate is based on the Commission’s considerable experience in reviewing and redacting similar records in responding to numerous requests over the course of quite a few months. 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 The Commission is advised that, under the Public Records Law, an agency may assess fees to search for, compile, segregate, redact or reproduce records. See G. L. c. 66, § 10(d)(ii); 950 CMR 32.07 (2)(i). Consequently, it is unclear what tasks the Commission is referring to as “review, research, and analysis” in its fee estimate. The Commission is advised that, as noted above and as noted in the previous determination, 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). The Commission is further advised 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. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, while the Commission may assess a fee for segregation and redaction pursuant to Exemption (a) as described in its fee estimate, the Commission is not permitted to assess a fee for segregation and redaction under Exemption (c). 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).

Randall E. Ravitz, Esq. SPR24/2944 Page 6 November 13, 2024 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