Todd Wallack v. Peace Officer Standards and Training Commission (SPR 20252549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2025 SPR25/2549 Randall E. Ravitz, Esq. General Counsel Peace Officer Standards & Training Commission 84 State Street 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 August 13, 2025, Mr. Wallack requested “lists of disciplinary records for current of transferred officers submitted by Harvard University since 2020.” The Commission responded on August 27, 2025, assigned reference number 25-241 to this request, and provided a fee estimate. Unsatisfied with the Commission’s response, and objecting to the fees, Mr. Wallack petitioned this office, and this appeal, SPR25/2549, 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

Randall E. Ravitz, Esq. SPR25/2549 Page 2 September 11, 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. 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). Current Appeal In his appeal petition, Mr. Wallack argues the following: 1. My understanding is all the information on the spreadsheets are public information about police officers who have been disciplined. None of the information is confidential and therefore needs no review. 2. Even if a review were necessary, the fee estimate is excessive. If you assume each page of a spreadsheet takes 5 minutes to review, that would take 40-45 minutes in total. Under state law, agencies are required to waive the first 4 hours of charges. The agency claims it would take 9 hours to review 8-9 pages, which seems unreasonable. I do not know of any legal basis to claim that it would take an hour per page to review a document with public information. The Commission’s August 27th Response In its August 27, 2025 response, the Commission gives a total fee estimate of $125, and provides the following information in support of its fee estimate: The Commission construes your request to be for the original excel documents regarding disciplinary records provided to the Commission by the Harvard University police department in 2022 and 2023.

Randall E. Ravitz, Esq. SPR25/2549 Page 3 September 11, 2025 Given the large volume of records you are requesting, the Commission asks for a modification. If no modification can be made, the Commission reserves the right to assess a fee of $25 per hour if it must spend more than four hours searching for, compiling, segregating, redacting, and reproducing requested records. The rate is set at $25 per hour because no Commission employee who can perform the tasks necessary to produce the requested records makes a lower hourly rate and the fee shall not be more than $25 an hour. See M.G.L. c. 66, § 10(d)(ii). The Commission expects a project of this magnitude to take upward of 9 hours to prepare. The Commission would need to expend a great deal of time and effort to compile the requested information. Based on the Commission’s experience dealing with previous public records requests for similar records, it anticipates redacting the below information. The Commission would not be charging a fee to redact every form of information listed below. As the task chart makes clear, it would only be charging for the time taken by a Commission staff member to compile records, segregate or redact them as required by law, or reproduce them. Task Estimated Time 1. The Commission will retrieve and review three 364 minutes Excel worksheets comprising a total of 364 rows of (rounded down to data. It will then analyze and assess the potential 6 hours) public records. This includes examining disciplinary records for current or transferred officers submitted by Harvard University since 2020. The Commission estimates it will take an average of about one minute per row of data for a Commission staff member to review, analyze, and apply necessary redactions required by law. That is, some of the information may require more time for review, and some may require less time. Of particular note, almost all of the 364 rows include column(s) with a descriptions and/or categorizations of allegations. The Commission anticipates spending the majority, but not all, of its time reviewing these columns for redaction. The amount of time needed results from a combination of factors. First, there are several forms of information made non-disclosable by law that the Commission will need to look for in the records, as discussed above. Second, determining whether a particular item of data implicates a certain source of law might, in some cases, call for a review and

Randall E. Ravitz, Esq. SPR25/2549 Page 4 September 11, 2025 application of legal sources, and deliberation. And third, the technical steps in making redactions take a certain amount of time. Significantly, the above estimate is based on the Commission’s considerable experience in reviewing and redacting similar records in responding to numerous requests. 2. Review, research, and analysis by reviewing 3 hours attorney(s) will also be required. This process includes checking to ensure that any redactions, and all other aspects of the Commission’s response, are consistent with the Public Records Law and any other sources of law that provide a basis for withholding information. The process might require the analysis of statutory, regulatory, and case law, and application of such sources of law to the form of data at issue. It might also require reaching out to other Commission personnel to obtain more information regarding the Commission’s records. The sources of authority governing public records implicitly recognize that an agency may assess fees for such work by: (1) allowing it to charge for “segregation or redaction [that] is required by law,” M.G.L. c. 66, § 10(d)(ii); 950 CMR 32.07(2)(d), (2)(l)2.; (2) defining “Segregation Time” as “[t]he time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges,” as opposed to “time expended to review record for accuracy and correct errors,” 950 CMR 32.02; and (3) and defining “Redact” as “[t]o delete, or otherwise expurgate that part of a public record that is exempt from disclosure under M.G.L. c. 4, § 7, clause Twenty- sixth or other legally applicable privileges from non- exempt material,” id. While many tasks can be performed by a non-lawyer alone, the type of legal work referenced above calls for attention by an attorney at law. See, e.g., M.G.L. c. 221, § 46A; Mass. R. Prof. C. 5.3 & cmts., 5.5 & cmts., 8.4 & cmts.; In re Hrones, 457 Mass. 844, 849-57 (2010). Accordingly, the Commission expects that a non-attorney will perform as much of the preparatory work as is appropriate, but will need

Randall E. Ravitz, Esq. SPR25/2549 Page 5 September 11, 2025 to refer certain matters that require substantive legal analysis to a Commission attorney. Indeed, the Public Records Division appears to handle matters the same way. That office has non-attorneys perform certain administrative tasks, but it assigns attorneys to review matters and has an attorney sign decisions. See SPR25/0006 (Jan. 16, 2025) (appearing to accept the validity of the same explanation offered by the Commission in response to another public records request, by stating, “the Commission has provided an explanation of the tasks involved in its fee estimate and has explained that the amount of time described in its fee estimate is reasonable”). 3. Total: $125 364 rows of data x 1 minute per each row of data = 364 minutes (rounded down to 6 hours) 6 hours + 3 hours = 9 hours 9 hours - 4 hours (M.G.L. c. 66, § 10(d)(ii)(B)) = 5 hours 5 hours x $25/hour = $125 In its response, the Commission notes that among other redactions, it will be required to make the following redactions required by law under Exemption (a): Any victim information that the Commission, upon analysis, finds to be non- public under . . . Exemption (a), because it is “specifically or by necessary implication exempted from disclosure by” M.G.L. c. 41, § 97D; M.G.L. c. 41, § 98F; M.G.L. c. 66, § 10B; M.G.L. c. 209A, § 8; M.G.L. c. 258B, § 3(h), (w); M.G.L. c. 258E, § 10; and/or M.G.L. c. 265, § 24C[.] . . . To the extent that your records request extends to open complaints, the Commission invokes Exemption (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.” In Camera Inspection I find that an in camera review of a representative sample of the responsive records would facilitate a determination as to the scope of redactions required to be performed by the Commission, therefore shedding light on the reasonableness of the fee estimate. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Commission’s custody and issue an opinion on the public or exempt nature of the records.

Randall E. Ravitz, Esq. SPR25/2549 Page 6 September 11, 2025 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Commission is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack