Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20243238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2024 SPR24/3238 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); SPR24/2398 Determinations of the Supervisor of Records (September 6, 2024 and October 11, 2024) and SPR24/2944 Determinations of the Supervisor of Records (November 13, 2024). In my November 13th determination, I ordered the Commission to either revise its fee estimate or provide further explanation of how the assessed fees are consistent with the Public Records Law. Subsequently, the Commission responded on November 27, 2024, providing a revised fee estimate. Objecting to the fees, Mr. Wallack petitioned this office, and this appeal, SPR24/3238, was opened as a result. In a further response to this office and Mr. Wallack on December 15, 2024, the Commission reiterates the arguments for its fee estimate and asks that this office reject Mr. Wallack’s appeal. 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. SPR24/3238 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. 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 November 27th Fee Estimate In its November 27, 2024 response, the Commission notes that it “incorporates all of its prior responses and other communications,” and provides additional explanations concerning its fee estimate.

Randall E. Ravitz, Esq. SPR24/3238 Page 3 December 16, 2024 In its previous October 28, 2024 response, the Commission provided the following chart summarizing its fee estimate: 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; 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 In its November 27th response, the Commission provides the following explanation concerning the tasks involved: The process of review, research, and analysis includes checking to ensure that any redactions, and all other aspects of the Commission’s response, are consistent with the Public Records Law and any other sources of law that provide a basis for withholding information. The process might require the analysis of statutory,

Randall E. Ravitz, Esq. SPR24/3238 Page 4 December 16, 2024 regulatory, and case law, and application of such sources of law to the form of data at issue. It might also require reaching out to other Commission personnel to obtain more information regarding the Commission’s records. The sources of authority governing public records implicitly recognize that an agency may assess fees for such work by: (1) allowing it to charge for “segregation or redaction [that] is required by law,” M.G.L. c. 66, § 10(d)(ii); 950 CMR 32.07(2)(d), (2)(l)2.; (2) defining “Segregation Time” as “[t]he time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges,” as opposed to “time expended to review record for accuracy and correct errors,” 950 CMR 32.02; and (3) and defining “Redact” as “[t]o delete, or otherwise expurgate that part of a public record that is exempt from disclosure under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges from non-exempt material,” id. Based on the information provided in its November 27th response, and in conjunction with the other responses provided by the Commission, it remains unclear why the Commission requires the amount of time described in its fee estimate in order to produce the records. Based on the Commission’s response, it appears that the Commission is assessing fees for multiple staff members to review the same records. Specifically, it is unclear why the Commission requires both a “reviewing attorney” and a “Commission staff member” to review and analyze the responsive spreadsheets for redaction. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Fair Information Practices Act (FIPA) In its November 27th response, the Commission quotes its previous responses, and argues the following: Note that the Massachusetts Fair Information Practices Act places certain restrictions on the disclosure of information that is not a public record and constitutes “personal data.” See M.G.L. c. 66A, §§ 1-3; 801 CMR 3.00; 555 CMR 8.00. Thus, where information falls outside the definition of “public record” based on any statutory exemption and it constitutes “personal data,” its “segregation or redaction is required by law,” and so a fee may “be assessed for time spent segregating or redacting” it. M.G.L. c. 66, § 10(d)(ii); 950 CMR 32.07(2)(l)2. . . . [I]nformation covered by Exemption (c) also constitutes “personal data” that may not be disclosed under the Fair Information Practices Act (FIPA), M.G.L. c. 66A. Indeed, in its letter of January 19, the Commission made a point of noting that “the Massachusetts Fair Information Practices Act places certain restrictions on the disclosure of information that is not a public record and constitutes ‘personal data,’” with citations to M.G.L. c. 66A, §§ 1-3; 801 CMR 3.00; and 555 CMR 8.00.

Randall E. Ravitz, Esq. SPR24/3238 Page 5 December 16, 2024 The Commission is advised that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (“determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. As noted in previous determinations, 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). 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. These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also “required by law.” Where FIPA does not operate through Exemption (a) of the Public Records Law to require the withholding of information, the Commission is not permitted to assess a fee for segregation and redaction under FIPA. Additionally, as noted in the February 29, 2024 determination, the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c). Consequently, the Commission is not permitted to assess fees for segregation and redaction under Exemption (c). As noted in the previous determination, this does not preclude the Commission from assessing a fee for other segregation and redaction that is required by law pursuant to Exemption (a) of the Public Records Law. Consequently, 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). 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.

Randall E. Ravitz, Esq. SPR24/3238 Page 6 December 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack