Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20251556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2025 SPR25/1556 Evert Fowle, Esq. Counsel Peace Officer Standards & Training Commission 84 State Street, Suite 200 Boston, MA 02109 Dear Attorney Fowle: 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); SPR25/0006 Determination of the Supervisor of Records (January 16, 2025); SPR25/0312 Determination of the Supervisor of Records (February 18, 2025) and SPR25/0622 Determination of the Supervisor of Records (March 19, 2025). In my March 19th determination, I found that the Commission had provided no new arguments nor additional information that would affect whether its fee estimate was consistent with G. L. c. 66, § 10(d), and I ordered the Commission to either revise its fee estimate, or provide further 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

Evert Fowle, Esq. SPR25/1556 Page 2 June 17, 2025 explanation of how the fees are consistent with the Public Records Law. Subsequently, the Commission responded on June 2, 2025, providing Mr. Wallack with responsive records in redacted form. Unsatisfied with the Commission’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/1556, 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. Current Appeal In his appeal petition, Mr. Wallack states the following: I wish to appeal a partial denial by the POST Commission. Specifically, I wish to appeal the decision by the POST Commission to withhold a column containing dates of birth for current and former law enforcement officers who have been disciplined. Upon review of the appeal petition, I understand Mr. Wallack objects only to the redactions of dates of birth, and not to the redaction of other information in the records. The Commission’s June 2nd Response In its June 2, 2025 response, the Commission provides responsive spreadsheets in redacted form, and explains the following concerning the redaction of dates of birth: Any reference to an officer’s date of birth was redactable pursuant to the exemption provided under M.G.L. c. 4, § 7, cl. 26(a), allowing the Commission to withhold records that are “specifically or by necessary implication exempted from

Evert Fowle, Esq. SPR25/1556 Page 3 June 17, 2025 disclosure by statute” (“Exemption (a)”), in light of M.G.L. c. 150E, §§ 1, 5A(d) (stating, “dates of birth . . . of employees . . . shall not be public records and shall be prohibited from disclosure except as provided in [M.G.L. c. 4, § 7, cl. 26(o) and (p) (‘Exemptions (o) and (p)’)]”); and M.G.L. c. 4, § 7, cl. 26(c), applicable to “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy” other than “records related to a law enforcement misconduct investigation” (“Exemption (c)”). . . . See also M.G.L. c. 66A, § 2(c) (prohibiting an agency from “allow[ing] any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter,” except in certain specified circumstances). 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, 545-46 (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. In its response, the Department cites G. L. c. 150E, § 5A(d), which provides in pertinent part as follows: Home addresses, home and personal cellular telephone numbers, personal email addresses, dates of birth, bargaining units and groupings of employees and emails

Evert Fowle, Esq. SPR25/1556 Page 4 June 17, 2025 or other communications between employee organizations and their members shall not be public records and shall be prohibited from disclosure except as provided in subclauses (o) and (p) of clause Twenty-sixth of section 7 of chapter 4 G. L. c. 150E, § 5A(d). Additionally, G. L. c. 150E, § 1 provides the following definition: “Employee” or “public employee”, any person in the executive or judicial branch of a government unit employed by a public employer except elected officials, appointed officials, members of any board or commission, representatives of any public employer, including the heads, directors and executive and administrative officers of departments and agencies of any public employer, and other managerial employees or confidential employees, and members of the militia or national guard and employees of the commission, and officers and employees within the departments of the state secretary, state treasurer, state auditor and attorney general. G. L. c. 150E, § 1. Based on the Commission’s June 2nd response, I find it is unclear how G. L. c. 150E § 5A(d) would apply to the responsive spreadsheets provided by the Department of State Police to the Commission. Specifically, the Commission has not demonstrated that the spreadsheets constitute the type of “communications between employee organizations and their members” described in the statute. The Commission must clarify this. The Commission also cites G. L. c. 66A, § 2(c), which provides in pertinent part as follows: Every holder maintaining personal data shall . . . not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought if the data subject is entitled to access under clause (i). G. L. c. 66A, § 2(c). Based on the Commission’s June 2nd response, I find it is unclear how the redacted dates of birth constitute the type of “personal data” described in G. L. c. 66A, § 2(c). The Commission must clarify this.

Evert Fowle, Esq. SPR25/1556 Page 5 June 17, 2025 Exemption (c) Exemption (c) applies to: 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 of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292.

Evert Fowle, Esq. SPR25/1556 Page 6 June 17, 2025 The Commission is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court in Mack held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. The Court in Mack explained that “the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption.” Id. at 12. In this case, where the requested spreadsheets are related to investigations into law enforcement misconduct, I find the Commission has not shown how the spreadsheets are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Commission has not met its burden to redact the records pursuant to Exemption (c) of the Public Records Law. 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. Mr. Wallack may further appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack