Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20243236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2024 SPR24/3236 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, 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, 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); SPR24/0774 Determinations of the Supervisor of Records (March 26, 2024, June 3, 2024, and August 6, 2024) and SPR24/2523 Determinations of the Supervisor of Records (September 26, 2024, and November 8, 2024). In my November 8th determination, I declined to reverse my findings in the September 26th determination, and found that the Commission had not met its burden to withhold responsive records under Exemption (d) of the Public records Law. Subsequently, the Commission responded on November 25, 2024. Unsatisfied with the Commission’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/3236, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to this office and Mr. Wallack on December 15, 2024. 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. SPR24/3236 Page 2 December 16, 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. Current Appeal In his appeal petition, Mr. Wallack argues the following: The [Commission’s] response does not include any of the documents submitted by law enforcement agencies I requested. Instead, the Commission included a link to a separate document created by the Commission. It is not clear from the agency’s response how this document was created. . . . The commission’s response also references documents provided in camera for inspection. I am unclear from the letter what documents the Commission provided to the Supervisor’s office.... I ask you to order the commission to provide copies of the documents I requested 18 months ago. The Commission’s November 25th and December 15th Responses In its November 25, 2024 response, the Commission provides a responsive letter and a link to a spreadsheet. Although this office does not have access to the link contained in the Commission’s response, Mr. Wallack provided copies of the linked documents with his appeal petition. In its December 15, 2024 response, the Commission further explains the following: With respect to its intended manner of producing data to Mr. Wallack, the Commission explained in part that the public records law “allows an agency to

Randall E. Ravitz, Esq. SPR24/3236 Page 3 December 16, 2024 produce ‘any segregable portion of a public record’” and thus permits it “to segregate (or extract) data from the nonexempt (and thus public) part of a record and then produce that data.” (Id. at 28 (citing M.G.L. c. 66, § 10(a), as amended by St. 2016, c. 121, § 10).) The Commission added that the Massachusetts Supreme Judicial Court “confirmed as much” in a 2020 decision.” (Id. (citing Attorney Gen. v. District Att’y, 484 Mass. 260, 262, 274-75 (2020).) In that case, the Commission observed, the court essentially recognized that it would be allowable for an agency to sort, segregate, extract, and compile certain data from an internal database and create a new report in response to a public records request. (Id.) Accordingly, the Commission indicated, it “expect[ed] that, when [the above-described] process is completed, it will be able to produce sets of data on a rolling basis,” which “data would be appropriately segregated and redacted, as discussed . . . above.” (Id. at 30.) . . . The Commission ultimately produced all the data at once. It concedes that a projected timeframe in its letter was too optimistic. (Commission Letter of Feb. 6, 2024 at 30.) However, even at that time, the Commission noted that “it is an unfortunate reality that completion dates are often hard to predict with large projects of this type.” (Id.) Possession, Custody, or Control The Commission is advised that 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based upon the previous in camera review of a representative sample of the responsive records, and based on the Commission’s responses, it is unclear whether the Commission possesses additional records responsive to Mr. Wallack’s request. See SPR24/0774 Determinations of the Supervisor of Records (March 26, 2024, June 3, 2024, and August 6, 2024). If the Commission does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”).

Randall E. Ravitz, Esq. SPR24/3236 Page 4 December 16, 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 (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