Emma Rindlisbacher v. Peace Officer Standards and Training Commission (SPR 20243145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2024 SPR24/3145 Kerri Johnson Records Access Officer Peace Officer Standards and Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Ms. Johnson: I have received the petition of Emma Rindlisbacher appealing the response of the Peace Officer Standards and 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 September 20, 2024, Ms. Rindlisbacher requested the following: Pursuant to Massachusetts public records law, I am writing to request copies of all of the documents regarding the [specified individual’s] incident of alleged use of force (the “credible information” that made the allegation and the “papers related to the suspension of the certification”). Please limit this request to documents between Jan 1, 2023 and the date the search is conducted. The Commission responded on October 23, 2024. Unsatisfied with the Commission’s response, Ms. Rindlisbacher petitioned this office, and this appeal, SPR24/3145, 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 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. 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 SPR24/3145 Page 2 December 4, 2024 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 October 23rd Response In its October 23, 2024 response, the Commission states that “[a]ny potentially responsive records in our possession currently fall under one or more exemptions,” and cites Exemptions (a), (d), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (d), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Commission cites G. L. c. 6E, § 8(c)(2), which provides in pertinent part as follows: The division of police standards may initiate a preliminary inquiry into the

Kerri Johnson SPR24/3145 Page 3 December 4, 2024 conduct of a law enforcement officer upon receipt of a complaint, report or other credible evidence that is deemed sufficient by the commission that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6E, § 8(c)(2). In its October 23rd response, the Commission argues the following: To the extent your records request related to a preliminary inquiry or a determination of whether to initiate one, the Commission invokes M.G.L. c. 4, § 7, cl. 26(a), which allows the Commission to withhold records that are “specifically or by necessary implication exempted from disclosure by statute” in light of M.G.L. c. 6E, § 8(c)(2), a provision of the Commission’s governing statute, which states that “[a]ll proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential.” At no point will the Commission confirm or deny the existence of a preliminary inquiry or whether it is determining to initiate one, and this letter should not be construed as providing any such confirmation or denial. Based on the information provided in the Commission’s response, it is unclear how any withheld records constitute the type of records contemplated under G. L. c. 6E, § 8(c)(2). The Commission must clarify this. 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. 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,

Kerri Johnson SPR24/3145 Page 4 December 4, 2024 § 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, under Exemption (d), the Commission argues the following: M.G.L. c. 4, § 7, cl. 26(d) (“Exemption (d)”) applies to such records, as they constitute interagency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” The premature disclosure of such records could taint the deliberative process of the Commission in its decision making. Based on the Commission’s response, I find it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Additionally, I find the Commission has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The Commission must clarify these matters. Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be

Kerri Johnson SPR24/3145 Page 5 December 4, 2024 withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its response, under Exemption (f), the Commission argues the following: M.G.L. c. 4, § 7, cl. 26(f) (“Exemption (f)”) provides the Commission a basis for withholding such records, as they constitute “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The records were compiled out of the public view by law enforcement or investigatory officials who serve inside or outside the Commission. Their disclosure would likely prejudice effective law enforcement to an extent that disserves the public interest. Based on the Commission’s response, it is unclear how any responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the Commission did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Commission must clarify this. Additionally, it is unclear from the Commission’s response which specific records the Commission intends to withhold. The Commission must identify the records, categories of records, or portions of records it intends to withhold under the Exemptions discussed above. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any 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”). It is further uncertain why the records must be withheld in their entirety. The Commission must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). 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 Ms. Rindlisbacher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Kerri Johnson SPR24/3145 Page 6 December 4, 2024 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: Emma Rindlisbacher