Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20250006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2025 SPR25/0006 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); SPR24/2944 Determination of the Supervisor of Records (November 13, 2024) and SPR24/3238 Determination of the Supervisor of Records (December 16, 2024). In my December 16th determination, I ordered the Commission to either revise its fee estimate, or provide further explanation of how the fees are consistent with the Public Records Law. Subsequently, the Commission responded on December 31, 2024. Objecting to the fees, Mr. Wallack petitioned this office, and this appeal, SPR25/0006, 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. SPR25/0006 Page 2 January 16, 2025 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 December 31st Response In its December 31, 2024 response, the Commission states that “the Commission continues to assert that its fee estimate of $750 was reasonable and that [Mr. Wallack] must tender that sum in order for the Commission to begin working to satisfy [his] request.” The Commission also provides extensive excerpts from its previous letters to this office and Mr.

Randall E. Ravitz, Esq. SPR25/0006 Page 3 January 16, 2025 Wallack. 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 Reasonable Amount of Time In its December 31st response, the Commission provides the following explanation concerning the amount of time described in its fee estimate to produce records:

Randall E. Ravitz, Esq. SPR25/0006 Page 4 January 16, 2025 As [the Commission] explained, it expects that “[t]he process of review, research, and analysis” will “include[] 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,” which “might require the analysis of statutory, regulatory, and case law, and application of such sources of law to the form of data at issue.” (Commission Letter of Nov. 27, 2024.) While many tasks can be performed by a non-lawyer alone, the type of legal work referenced above calls for attention by an attorney at law. See, e.g., M.G.L. c. 221, § 46A; Mass. R. Prof. C. 5.3 & cmts., 5.5 & cmts., 8.4 & cmts.; In re Hrones, 457 Mass. 844, 849-57 (2010). Accordingly, the Commission expects that that a non-attorney will perform as much of the preparatory work as is appropriate, but will need to refer certain matters that require substantive legal analysis to a Commission attorney. . . . Accordingly, the Commission stands by its estimate of four hours for “[r]eview, research, and analysis by reviewing attorney(s)” at a rate of $25 per hour. (Id.) Segregation and Redaction Required by Law In its December 31st response, the Commission further argues the following: The Commission maintains the positions it has taken regarding redactions based on the Massachusetts Fair Information Practices Act (“FIPA”), M.G.L. c. 66A; and the so-called privacy exemption to the definition of “public records,” M.G.L. c. 4, § 7, cl. 26(c) (“Exemption (c)”) . . . The fact is that the statute and regulation concerning fee assessments do not refer to segregation or redaction required by “statutes that explicitly indicate that certain records or information are not public records” or “statutes [that] operate through Exemption (a).” (Id.) Rather, they refer to segregation or redaction that is “required by law.” M.G.L. c. 66, § 10(d)(ii); 950 CMR 32.07(2)(l)2. And, as the Supervisor’s Office itself acknowledged, “[o]nce a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure.” (Supervisor Letter of Dec. 16, 2024.) Where FIPA bars disclosure, segregation or redaction is required by law. Thus, the Supervisor’s Office has offered no reason for the Commission to retreat from its position on this subject. The Commission reserves the ability to make appropriate redactions, and to charge fees for those redactions, if they are required by FIPA. . . . [T]he Commission has explained multiple times how Exemption (c) may apply to certain forms of responsive information that constitute “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion

Randall E. Ravitz, Esq. SPR25/0006 Page 5 January 16, 2025 of personal privacy” but not “records related to a law enforcement misconduct investigation.” M.G.L. c. 4, § 7, cl. 26(c). . . . Thus, as to this issue too, the Supervisor’s Office has given the Commission no cause to change its position. Accordingly, the Commission reserves the ability to make appropriate redactions based on Exemption (c) and to charge fees for those redactions if they are additionally required by another source of law, such as FIPA. Although the Commission has provided an explanation of the tasks involved in its fee estimate and has explained that the amount of time described in its fee estimate is reasonable, the Commission has not demonstrated that all of the segregation and redaction described in its fee estimate is required by law. As noted in the previous determinations, the Commission is not permitted to assess a fee for segregation and redaction under either FIPA or Exemption (c). However, 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack