Seth Kershner v. City of Chicopee Law Department (SPR 20160575)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 15, 2016 SPR16/575 Ms. Christine M. Pikula, Esq. Associate City Solicitor City of Chicopee -Law Department City Hall, Market Square 17 Springfield Street Chicopee, MA 01013 Dear Attorney Pikula: I have received the petition of Seth Kershner appealing the response of the City of Chicopee-Law Department (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 records made or received by the Department concerning the Chicopee Police Special Response/SWAT team. Mr. Kershner's request contained seven (7) categories of records, including incident reports, procedures, mission statements, training materials, procurement and maintenance materials as well as budget and audit records. You denied his request in its entirety, claiming that any responsive records would be withheld subject to the public safety exemption to the Public Records Law. G. L. c. 4, § 7 (26) (n). 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). 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

Ms. Christine Pikula, Esq. SPR16/575 Page2 August 15, 2016 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 provided in this determination for further information. Exemption (n) Exemption (n) applies to records, including, but not limited to, blueprints, 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 or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record 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) (emphasis added) Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. See SPR Bulletin NO. 04-03 (Aprill, 2003). Present appeal As indicated above, Mr. Kershner requested incident reports, procedure and training information, as well as budget and audit information regarding any such programs. I find the Department has failed to satisfy the burden of specificity to state that all responsive records in all categories would be exempt from disclosure in their entirety. Order I find the Department has failed to meet its burden in explaining how the exemption applies to each category of records. Accordingly, the Department is hereby ordered to review its records and provide Mr. Kershner a revised response to his request, prepared in a manner

Ms. Christine Pikula, Esq. SPR16/575 Page 3 August 15, 2016 consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. ours, pervisor of Records cc: Mr. Seth Kershner Chief William R. Jebb