Musgrave, Shawn v. Executive Office of Public Safety and Security - Department of State Police (SPR 20140554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 17, 2014 SPR14/554 Mr. Glenn M. Rooney, Esq. Department of State Police Office of the Chief Legal Counsel 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Rooney: I have received the petition of Shawn Musgrave appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Musgrave requested copies of a memorandum of agreement (MOA) between the Department and the Defense Logistics agency regarding a federal program to reallocate Department of Defense equipment to local law enforcement (1033 Program). Mr. Musgrave also requested what he called an "annual inventory report," completed by the Department as Massachusetts Coordinator for the 1033 Program. Mr. Musgrave's original request is dated August 18,2014. In subsequent email messages to the Department's Director of Media Relations dated August 20, August 21 and August 22 Mr. Musgrave sought a reply to this request. In an August 23, 2014 email the Director of Media Relations replied, indicating that Mr. Musgrave's request had "been received and, per standard operating procedures, has been forwarded to the Department's Legal Section for review and Response." In subsequent emails dated August 24 and August 28 Mr. Musgrave requested an update. On August 28 the Director of Media Relations replied, indicating that the request was "still being reviewed." More emails from Mr. Musgrave requesting status updates followed on September 3, September 8, September 11 and September 12. On September 12 Mr. Musgrave informed the Director of Media Relations ofhis intentions to file an administrative appeal with my office for constructive nonresponse to his request. That appeal was filed on September 15. In a letter dated September 12, the same date that Mr. Musgrave informed the Department of his plans to appeal the Department's nonresponse, the Department provided a copy of the MOA, a document that is available for download on the Department's website. It is not clear how long that document has been on the website, but a review of the metadata of the MOA indicates that it was created in January 2014. See http://www.mass.gov/eopss/agencies /msp/1033-program.html (accessed December 15, 2014). It is unclear, therefore, why the Legal OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Glenn M. Rooney, Esq. SPR14/554 Page Two December 17 , 2014 Section would be required to review a request for a record that is freely available on the Department's website. Further, it is unclear why a response for a record related to a program that has existed at least since September 2013 (the date of the MOA) would require nearly one month to respond. In fact, it appears that this program has existed in some form since 1997. See http://www.dispositionservices.dla.mil/leso/pages/1 033programfaqs.aspx (accessed December 15, 2014). In its December 12letter the Department was denied Mr. Musgrave's request for the "annual inventory report," citing Exemption (n) of the Public Records Law. G. L. c. 4, § 7 (26) (n). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Exemption (n) Exemption (n) applies to: records including, but not limited to, blue prints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons, buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, §7 (26)(n) Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. It is my understanding that the 1033 Program provides surplus Department of Defense military equipment to state and local law enforcement agencies through the State Coordinator. In your letter you explained that the responsive records detail the quantity and technical specifications of property received pursuant to this program. Furthermore, you stated that the disclosure of this information would "undermine public safety as it relates to security measures and emergency preparedness."

Mr. Glenn M. Rooney, Esq. SPR14/554 Page Three December 17, 2014 Mr. Musgrave argues that dozens of other states have released similar records. It is important to note to Mr. Musgrave that the only law that is applicable in this instance is the Massachusetts Public Records Law. Under Exemption (n) a records custodian, the Department in this instance, is granted a significant level of discretion with respect to the disclosure of records withheld pursuant to this exemption. In an email made available to this office Mr. Musgrave notes that a request for an inventory of equipment received under the 1033 Program was released by the Department in 2013. In that request Mr. Musgrave sought a copy of"[ s] preadsheets or summary tables of all requests for aircraft, armored vehicles and weapons under Program 1033." In response the Department did provide a responsive record. I find that in this instance the request is different; namely, Mr. Musgrave now requests copies of inventory lists submitted to the Department by individual law enforcement agencies that acquired the inventory through the Department as participants in the 1033 Program. Accordingly, I find Mr. Musgrave's comparison has no impact on the public nature of the records he now seeks. Upon a thorough review of this matter, it is my finding that the Department's exercise of discretion in this manner is appropriate. The disclosure of records responsive to this request may prove detrimental to the Department's law enforcement and public safety efforts. See also SPR14/257 Determination of Supervisor ofRecords (January 27, 2014). Accordingly, whereas I find the Department may permissibly withhold responsive records R rsuant to Exemption (n) of the Public Record Law, this administrative appeal is now cl sed. Supervisor of Records cc: Mr. Shawn Musgrave