Small Towns Big Problems v. Peace Officer Standards and Training Commission (SPR 20251325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2025 SPR25/1325 Kerri L. Johnson Records Officer Peace Officer Standards and Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Ms. Johnson: I have received the petition of Small Towns Big Problems (requestor) appealing the response of Massachusetts Peace Officer Standards and Training Commission (POST) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2025, the requestor sought: [1] Documentation that indicates if the POST Commission was notified that [an identified officer] was placed on administrative leave; [2] Documentation that indicates when an administrative leave should start and end based on the circumstances and documentation that explains those circumstances; [3] Documentation that explains how to determine if an administrative leave should be reported to the POST Commission; [4] Documentation that explains what happens if an administrative leave was not reported but should have been reported to the POST Commission; [5] Documentation that explains if a law enforcement officer currently working as an SRO must be certified by the POST Commission and if so, by when; [6] Documentation that explains the process of how to become certified by the POST Commission as an SRO. POST responded on May 12, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/1325, 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

Kerri L. Johnson SPR25/1325 Page 2 May 22, 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. POST’s May 12th Response In its May 12, 2025 response, POST cited G. L. c. 6E, §8(c)(2), as it operates though Exemption (a) of the Public Records Law, to withhold records and provided two links that contained information regarding “the certification process for School Resources Officers” and “the certification status and discipline records of particular officers, including School Resource Officers.” Current Appeal In its appeal petition, the requestor states, “[i]t is unclear which exemption of the public records law applies to withhold 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

Kerri L. Johnson SPR25/1325 Page 3 May 22, 2025 restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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. Under Exemption (a), POST cites 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 district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6E, § 8(c)(2). In its May 12, 2025 response, POST stated: The Commission construes your request as not seeking any “records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry,” as any such records would be “confidential” by statute M.G.L. c. 6E, § 8(c)(2). Any such documents thus would also not constitute “public records” pursuant to M.G.L. c. 4, § 7, cl. 26(a)… Note that 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… The Commission’s website includes records responsive to your request and other information that you may find helpful… The Commission has no additional records responsive to your request. Based on the information provided in POST’s response, it is unclear whether POST is withholding any responsive “records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry,” as contemplated under G. L. c. 6E, § 8(c)(2). POST is reminded that the duty to comply with requests for records extends to those records that exist

Kerri L. Johnson SPR25/1325 Page 4 May 22, 2025 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). To the extent it is withholding such records, POST must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and explain with specificity how G. L. c. 6E, § 8(c)(2) specifically or by necessary implication permits it to withhold the responsive records from disclosure. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). POST must clarify these matters. Conclusion Accordingly, POST is ordered to provide the requestor 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. The requestor may appeal the substantive nature of POST’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Small Towns Big Problems Randall E. Ravitz, Esq.