Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20252366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2025 SPR25/2366 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); SPR25/0006 Determination of the Supervisor of Records (January 16, 2025); SPR25/0312 Determination of the Supervisor of Records (February 18, 2025); SPR25/0622 Determination of the Supervisor of Records (March 19, 2025) and SPR25/1556 Determination of the Supervisor of Records (June 17, 2025 and July 25, 2025). In my June 17th determination, I noted that Mr. Wallack objected only to the redaction of dates of birth, and not to the redaction of other information in the records provided by the Commission. 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. SPR25/2366 Page 2 August 27, 2025 Further, I found that the Commission had not met its burden to redact the dates of birth under G. L. c. 150E, § 5A(d) or G. L. c. 66A, § 2(c), as they operate through Exemption (a) of the Public Records Law, nor under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c). In my July 25th determination, I declined to reverse my findings in the June 17th determination, and ordered the Commission to provide a response to Mr. Wallack. Subsequently, the Commission responded on August 8, 2025. Unsatisfied with the Commission’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/2366, 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. The Commission’s August 8th Response In its August 8, 2025 response, the Commission argues the following: In its prior communications, the Commission cited two bases for redacting the dates of birth and thoroughly explained why they apply. (Commission Letters.) The first basis was that the dates of birth fall outside the definition of “public records” pursuant to M.G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”), which extends to materials or data that are “specifically or by necessary implication exempted from disclosure by statute.” (Id.) In this case, that statute is M.G.L. c. 150E, §§ 1, 5A(d). (Id.) The second basis was that the dates of birth are exempt from the definition of “public records” under M.G.L. c. 4, § 7, cl. 26(c) (“Exemption (c)”), which 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” other than “records related to a law enforcement misconduct investigation.” (Id.) Unfortunately, the Supervisor’s Office has thus far declined to affirm the validity

Randall E. Ravitz, Esq. SPR25/2366 Page 3 August 27, 2025 of the Commission’s position. And, in its latest decision, it once again declared that “the Commission is ordered to provide [you] with a response to the request, provided in a manner consistent with [its] order, the Public Records Law and its Regulations within ten (10) business days,” and to copy that office on the response. (Supervisor Letter of July 25, 2025 at 4.) The Commission continues to maintain that its redaction of the dates of birth was proper, for all the reasons offered in its prior responses. (Commission Letters.) It presently has nothing more to offer in support of the grounds for redaction that it has previously asserted. Instead, the Commission will assert an additional basis for redacting the dates of birth pursuant to Exemption (a). It is, of course, free to do so at this stage. See M.G.L. c. 66, § 10(b)(iv) (affirming that “nothing in [an agency’s initial] written response [under §10(b)] shall limit an agency’s . . . ability to redact or withhold information in accordance with state or federal law.”). 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 August 8th response, as in its previous responses, the Commission cites G. L. c. 150E, § 5A(d), which provides in pertinent part as follows: Home addresses, home and personal cellular telephone numbers, personal email

Randall E. Ravitz, Esq. SPR25/2366 Page 4 August 27, 2025 addresses, dates of birth, bargaining units and groupings of employees and emails 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. In its August 8th response, under G. L. c. 150E, § 1 and § 5A(d), the Commission argues the following: As the Supreme Judicial Court has made clear, records may be exempt under Exemption (a) where their disclosure would “frustrat[e]” or “undermine” “the Legislature’s purpose in promulgating [particular] statutes,” or would “permit members of the general public to make an end run around” certain statutory restrictions “through public records requests.” Attorney Gen. v. District Attorney, 484 Mass. 260, 267-74 (2020) (discussing potential frustration of statutory schemes governing criminal offender record information and the sealing and expungement of criminal records). Such is the case here. Specifically, the release of law enforcement officers’ dates of birth would undermine provisions of M.G.L. c. 66 that restrict the dissemination of officers’ personal contact information. See M.G.L. c. 66, § 10B (setting forth provisions previously housed in a nearly identical form in § 10(d)). . . . The Appeals Court essentially recognized as much in a 2005 published opinion. See Commonwealth v. Righini, 64 Mass. App. Ct. 19, 24 (2005). In addressing the extent to which a criminal defendant may obtain discovery of the dates of birth of law enforcement witnesses, the court explained as follows: The plain language of both [M.G.L. c. 218, § 26A] and [the version of Mass. R. Crim. P. 14 in effect at relevant times] do not entitle the defendant to discovery of the birth dates of the law enforcement witnesses . . . .

Randall E. Ravitz, Esq. SPR25/2366 Page 5 August 27, 2025 That the statute and rule do not require the disclosure of dates of birth of police witnesses reflects a judgment that care must be taken to protect the safety of police officers whose work can be a “dangerous business.” United States v. Alston, 460 F.2d 48, 53 (5th Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). In the age of the Internet, for example, such information could be used to identify home addresses, to the discomfiture of the officer and his family. Indeed, in analyzing another statute, G.L. c. 66A, § 2, which protects personal data, we have noted that “the advent of modern data processing technology permits ‘the aggregation of pieces of personal information into large central data banks,’” John Doe v. Registrar of Motor Vehicles, 26 Mass.App.Ct. 415, 421-422, 528 N.E.2d 880 (1988), quoting from the Special Legislative Commission on Privacy, First Interim Report, 1975 House Doc. No. 5417. See G.L. c. 66, § 10(d ), as amended through St.2004, c. 149, § 124 (the public records law) (“[t]he home address and home telephone number of law enforcement, judicial, prosecutorial . . . and any other public safety and criminal justice system personnel . . . shall not be public records” and are not subject to general disclosure). [sic] Righini, 64 Mass. App. Ct. at 24 (alterations in second paragraph in original). . . . The import of the Appeals Court’s decision is clear: because the release of officers’ dates of birth could enable other personal contact information to be uncovered, their release would frustrate the legislative objective of protecting such information through the non-disclosure provisions of M.G.L. c. 66 — and potentially jeopardize the officers’ safety. It follows that such dates of birth can and should be withheld based on Exemption (a) for a reason additional to those previously offered by the Commission based on Exemptions (a) and (c). Accordingly, the Commission will continue to withhold that form of information. Based on the Commission’s August 8th response, it remains unclear how G. L. c. 150E § 5A(d) would apply to the responsive spreadsheets provided by the Department of State Police to the Commission. As in its previous responses, the Commission has not demonstrated that the spreadsheets constitute the type of “communications between employee organizations and their members” described in the statute. Consequently, the Commission has not met its burden to redact the dates of birth pursuant to G. L. c. 150E § 1 and § 5A(d) as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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

Randall E. Ravitz, Esq. SPR25/2366 Page 6 August 27, 2025 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