Makalah Lacy v. Peace Officer Standards and Training Commission (SPR 20250012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2025 SPR25/0012 Kerri L. Johnson Records Officer Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Makalah Lacy 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 December 3, 2024, Ms. Lacy requested, “[a]ll Anti- Corruption Division report, [a]ll body-worn camera (‘BWC’), [a]ll interviews, internal affairs reports, documents, files, transcripts, records, recordings and video footage related to [an identified individual] by Boston Police Department and EMS.” The Commission responded on December 17, 2024. Unsatisfied with the response, Ms. Lacy petitioned this office and this appeal, SPR25/0012, 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. 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. 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 L. Johnson SPR25/0012 Page 2 January 16, 2025 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 December 17th Response In its December 17, 2024 response, the Commission claimed Exemptions (a), (d), and (f) of the Public Records Law to withhold the requested records in their entirety. 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, 545-546 (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 cited G. L. c. 6E, § 8(c)(2), which provides in pertinent part, The division of police standards may initiate a preliminary inquiry into the 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

Kerri L. Johnson SPR25/0012 Page 3 January 16, 2025 district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6E, § 8(c)(2). In its response, the Commission indicated, “[t]o 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) in light of M.G.L. c. 6E, § 8(c)(2), a provision of the Commission’s governing statute stating 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 upon the Commission’s response, it is unclear how all the requested records are restricted under G. L. c. 6E, § 8(c)(2), as it operates through Exemption (a). The Commission must clarify whether the records relate to a preliminary inquiry as contemplated by the statute. 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, § 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, the Commission asserted, “[t]he premature disclosure of such records could taint the deliberative process of the Commission in its decision making.” Based on the Commission’s response, it is unclear what deliberative process the Commission is involved in, nor how the records are related to any ongoing deliberative process. Also, the Commission has not explained how disclosure of the requested records would taint any ongoing deliberative process. Further, the Commission has not established that the requested

Kerri L. Johnson SPR25/0012 Page 4 January 16, 2025 records are “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” As a result, the Commission has not sufficiently explained how the records are exempt from disclosure, in their entirety, under Exemption (d). The Commission is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). 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 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, the Commission stated, “[t]he 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.” Although the Commission states that “disclosure would prejudice effective law enforcement,” it is unclear how the records in their entirety can be withheld under Exemption (f). Based on the Commission’s response, it is uncertain if there is an ongoing investigation, neither is it clear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Commission did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable

Kerri L. Johnson SPR25/0012 Page 5 January 16, 2025 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear which records the Commission intends to withhold under Exemptions (a), (d), and (f) of the Public Records Law. G. L. c. 66, § 10(b)(iv) (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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Commission must clarify these matters. Conclusion Accordingly, the Commission is ordered to provide Ms. Lacy with a response in a manner consistent with this order, the Public Records Law and its Regulations within 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. Ms. Lacy may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Makalah Lacy