Burden, George and Jen v. Massachusetts Peace Officer Standards and Training Commission (SPR 20260912)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2026 SPR26/0912 Kerri L. Johnson Records Officer Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of George and Jen Burden appealing the response of the Peace Officer Standards and 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 December 8, 2025, Mr. and Ms. Burden requested: . . . [C]opies of any and all records created by the POST Commission concerning: [1] [An identified individual] [2] The Village at Flat Hill [3] The Burden family [4] Any matters involving Lunenburg This request covers all records generated since the inception of the POST Commission. On February 3, 2026, Mr. and Ms. Burden clarified their request: . . . Our request is not for copies of documents that we previously submitted to POST or materials that POST merely stores. We are not asking for our own documents to be returned to us. Instead, our request is limited to records that were created, generated, or authored by POST itself in connection with the matters identified in our request. This includes only documents, communications, notes, determinations, or internal records that POST produced as part of its own processes. . . . 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 SPR26/0912 Page 2 March 26, 2026 Prior Appeal This request was the subject of a prior appeal. See SPR26/0513 Determination of the Supervisor of Records (February 24, 2026). In my February 24th determination, I ordered the Commission to provide responsive records on a rolling basis. The Commission responded on February 26, 2026 and March 4, 2026. Unsatisfied with the responses, Mr. and Ms. Burden petitioned this office and this appeal, SPR26/0912, 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 February 26th Response In its February 26, 2026 response, the Commission provided responsive records in redacted form, citing Exemptions (a) and (f) of the Public Records Law and the common law attorney-client privilege. The Commission further stated in its response, “[p]er your clarified request, the Commission redacted certain information that you either provided or already received. While those redactions constitute the majority of the redactions, some additional redactions were warranted under the Massachusetts public records law.” Current Appeal In their appeal petition, Mr. and Ms. Burden contend: 1. Improper and unexplained redactions[:]

Kerri L. Johnson SPR26/0912 Page 3 March 26, 2026 The documents provided to us were almost entirely redacted, and no explanation was given for the basis of each redaction. We are requesting that the Supervisor require the RAO to:  Identify what each redaction pertains to, and  Cite the specific exemption relied upon for each redaction. At present, the redactions are so extensive that the records are unusable and do not satisfy the requirements of the Public Records Law. 2. Redacted documents we never requested[:] The Commission provided documents that we did not request and then redacted them heavily. This raises the question: Why would the Commission provide documents that were not requested, only to redact them, unless the intent was to create confusion or obscure the responsive records? We request that the Supervisor require the RAO to explain:  Why non‑responsive documents were included at all  Why they were redacted  How this aligns with the Commission’s obligations under 950 CMR 32 3. Failure to provide the POST‑stored records we specifically requested[:] In [its] reply, [the Commission] states: “Per your request, we did not include any records the Commission merely stores.” This is incorrect. Our request explicitly sought records stored by POST, including those related to [identified individuals]. Those are the very records that were excluded. We request that the Supervisor require the RAO to produce:  All POST‑stored records responsive to our request  Without improper narrowing or mischaracterization of what we asked for 4. Improperly combining two separate requests[:] The RAO combined the [identified individual] and [identified individual] matters into a single packet, despite these being separate requests. This has created additional confusion and makes it impossible to determine what records relate to which individual. We request that the Supervisor require:  Separate production of records for [identified individuals] 5. Pattern of delay and obstruction . . . . 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).

Kerri L. Johnson SPR26/0912 Page 4 March 26, 2026 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, 545-546 (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 February 26th response under Exemption (a), the Commission cited G. L. c. 214, § 1B to redact the responsive records, asserting: The withholding of complainant information is further justified pursuant to M.G.L. c. 4, § 7, cl. 26(a) . . . . Exemption (a) applies in light of M.G.L. c. 214, § 1B, with respect to the release of data that would reveal certain medical or psychological information and thus be invasive of personal privacy. . . . The Commission’s position is in harmony with other sources of law that, even if not directly applicable, demonstrate a clear policy determination. That policy determination is that records and communications related to healthcare, and medical, physical, and psychological conditions, should be protected as private. G. L. c. 214, § 1B G. L. c. 214, § 1B, known as the Privacy Statute, provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. The Commission is advised that G. L. c. 214, § 1B does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Consequently, this statute does not allow for the redactions to the responsive records.

Kerri L. Johnson SPR26/0912 Page 5 March 26, 2026 Additionally, in its February 26th response, the Commission asserts, “. . . the Massachusetts Fair Information Practices Act places certain restrictions on the disclosure of information that is not a public record and constitutes ‘personal data,’ as that term is defined therein.” Fair Information Practices Act (FIPA) The Commission is advised that FIPA and the Public Records Law are to be construed to work together, consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Based on the Commission’s response, it is unclear how the cited statute specifically or by necessary implication permits the Commission to redact the responsive records. Please be advised that for Exemption (a) to apply, said statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Commission must clarify this matter. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Kerri L. Johnson SPR26/0912 Page 6 March 26, 2026 Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its February 26th response, the Commission stated: The identity and personal contact information of complainants have been redacted . . . . Here, the redacted information was compiled out of the public view as part of a process overseen by the Commission’s Division of Police Standards. The Division is designated as “a law enforcement agency and its employees shall have

Kerri L. Johnson SPR26/0912 Page 7 March 26, 2026 such law enforcement powers as necessary to effectuate the purposes of [the Commission’s governing statute].” M.G.L. c. 6E, § 8(g). These powers include the authority “to receive intelligence on an applicant for certification or an officer certified under [the statute] and to investigate any suspected violations of law.” Id. The Commission is withholding complainant information to preserve the integrity of its investigatory functions, to protect individuals who provide information from potential retaliation, and to ensure the continued effectiveness of law enforcement efforts. Disclosure of such information would likely prejudice effective law enforcement in a manner that outweighs any public interest in release. Accordingly, the information falls squarely within the scope of Exemption (f). However, the Commission has elected not to redact certain of your personal information, such as your name or email address, for the limited purpose of demonstrating that communications were either sent by you or directed to you, and therefore fall outside the scope of your request, as you previously indicated that you were not seeking those records. Also pursuant to Exemption (f), the Commission has redacted information on matters such as the investigatory process of its investigatory staff. . . . The materials were compiled out of public view by law enforcement or investigatory officials who serve inside or outside the Commission and contain information on confidential investigative techniques and procedures. The disclosure of the redacted information would likely prejudice effective law enforcement to an extent that disserves the public interest. Based on the Commission’s response, to the extent that the Commission redacted identifying information of a voluntary witness or complainant, I find that the Commission may permissibly redact this information under Exemption (f). However, it is unclear what remaining information the Commission redacted pursuant to Exemption (f), and how such information can be redacted from the responsive records. The Commission did not demonstrate how disclosure of the redacted information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Commission must clarify this matter. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also

Kerri L. Johnson SPR26/0912 Page 8 March 26, 2026 Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). On February 26, 2026, the Commission asserted, “[t]he Commission has redacted information that is covered by the attorney-client privilege. . . . Such information reflects communications between Commission personnel and Commission attorneys regarding an investigative matter.” Based on the Commission’s response, I find that the Commission has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Commission must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such, that the communications were made in confidence, and that the privilege as to these communications has not been waived. Further, the Commission is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Burden of Specificity On March 4, 2026, the Commission stated, “[a]s was noted in our response, records that were created by, or provided by, your family were included with redactions because they are not responsive to your request.” The Commission is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. 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). Based on the Commission’s response, it is unclear which exemption the Commission is citing in order to

Kerri L. Johnson SPR26/0912 Page 9 March 26, 2026 redact certain responsive records. Therefore, the Commission must explain the specific exemption or exemptions of the Public Records Law that apply to these redactions. Unclear Appeal Mr. and Ms. Burden are advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In Mr. and Ms. Burden’s appeal petition, they asserted that the Commission, “[failed] to provide the POST‑stored records we specifically requested.” On March 4, 2026, the Commission stated, “. . . please note that, per your request, we did not include any records the Commission merely stores.” Based on this response, and Mr. and Ms. Burden’s February 3rd clarified request which stated, “[o]ur request is not for copies of documents that we previously submitted to POST or materials that POST merely stores[,]” I find the basis of this portion of Mr. and Ms. Burden’s appeal unclear. Accordingly, I am unable to opine on this portion of Mr. and Ms. Burden’s appeal at this time. Conclusion Accordingly, the Commission is ordered to provide Mr. and Ms. Burden with a response in a manner consistent with this order, the Public Records Law and its Regulations within 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. and Ms. Burden may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: George and Jen Burden