Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20250312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 18, 2025 SPR25/0312 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 & 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); SPR24/3238 Determination of the Supervisor of Records (December 16, 2024) and SPR25/0006 Determination of the Supervisor of Records (January 16, 2025). In my January 16th determination, I found that the Commission had not demonstrated that all of the segregation and redaction described in its fee estimate was required by law, and 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 January 31, 2025. Objecting to the fees, Mr. Wallack petitioned this 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. SPR25/0312 Page 2 February 18, 2025 office, and this appeal, SPR25/0312, 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. 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 January 31st Response In its January 31, 2025 response, the Commission refers back to its earlier fee estimate of $750, and explains the following:

Randall E. Ravitz, Esq. SPR25/0312 Page 3 February 18, 2025 The Commission has explained the basis for its fee estimate and why the estimate is consistent with the governing statute and regulations to the best of its ability within its eleven prior letters and other communications with you. (Commission Letters.) For reasons that it has previously offered, the Commission believes the positions of the Supervisor’s Office regarding the Commission’s ability to redact information based on M.G.L. c. 4, § 7, cl. 26(c) (“Exemption (c)”) and its ability to assess fees for any redactions that are required by the Fair Information Practices Act, M.G.L. c. 66A (“FIPA”) are incorrect as a matter of law. (Id.) The Commission further notes, as it has before, that its intent to redact information is not based solely on Exemption (c) and FIPA. (Id.) Rather, it also expects to make redactions based on other statutes that restrict disclosure of certain information and thus render such information exempt from the definition of “public records” under M.G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”). (Id.) Upon review of the Commission’s January 31st response, I find that the Commission has provided no new arguments nor additional information that would affect whether its fee estimate is consistent with G. L. c. 66, § 10(d). Consequently, the Commission must either 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 (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