Seth Kershner v. Ludlow, Town of - Police Department (SPR 20160399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 30, 2016 SPR16/399 Lieutenant Michael N. Brennan Town of Ludlow-Police Department 612 Chapin Street Ludlow, MA 01056 Dear Lieutenant Brennan: I have received the petition of Seth Kershner, a freelance journalist, appealing the response of the Town of Ludlow -Police Department (Police Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kershner requested copies of records regarding the Police Department's Special Response/SWAT Team from 2006 until the present (April29, 2016, date of request). The Police Department has denied copies to certain ofthe records pursuant to Exemptions (b) and (f) ofthe Public Records Law, and Mr. Kershner appealed. 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, § 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten ( 10 ) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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 ( c); see also District 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lt. Michael N. Brennan SPR16/399 Page 2 June 30, 2016 The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). Requested records containing exempt information may contain some non-exempt information. If so, any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. Failure to provide a timely response The Police Department provided a response on May 24, 2016 that included responsive information; however, the response was not made within ten (10) days of the April29, 2016 public records request. The Police Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Police Department response to public records request In its response the Police Department withheld records concerning tactical team policies, tactical procedures, tactical guidelines, tactical deployment reports and tactical training. In this response you cited Exemptions (b) and (f) of the Public Records Law. Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding. G. L. c. 4, § 7 (26) (b) For Exemption (b) to apply, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure.

Lt. Michael N. Brennan SPR16/399 Page 3 June 30, 2016 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281,290 n.l8 (1979). Order I find the Police Department response fails to meet its burden of specifically explaining how both Exemption (b) and (f) of the Public Records Law apply to withhold the records in their entirety. Accordingly, the Police Department is hereby ordered to provide Mr. Kershner with a revised, detailed response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response ust be provided to this office. It is preferable to send an electronic copy of this response to t · s office at pre@sec .state.ma. us. cc: Mr. Seth Kershner