Seth Kershner v. City of Chicopee Law Department (SPR 20160730)

The Commonwealth of Massachusetts William Francis Galvin, Secrerary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 27, 2016 SPR16/730 Ms. Christine M. Pikula, Esq. Associate City Solicitor City of Chicopee - Law Department City Hall, Market Square 17 Springfield Street Chicopee, MA 01 013 Dear Attorney Pikula: I have received the petition of Seth Kershner appealing the response of the City of Chicopee (City) Law Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on April29 2016, Mr. Kershner requested seven (7) categories of records "concerning the Chicopee Police Special Response I SWAT team." Previous appeals This request was the subject of prior appeals. Having received no response to his April 29 request or his June 28 follow up letter Mr. Kershner appealed by email to this office dated July 8, 2016. As a result, appeal SPR16/575 was opened on July 13,2016. I closed SPR16/487 with the proviso that a written response be provided, which the Department provided by letter dated July 29, 2016. In this response Associate City Solicitor Christine M. Pikula denied Mr. Kershner's April29 request, citing Exemption (n) ofthe Public Records Law. G. L. c. 4, § 7 (26) (n). Mr. Kershner appealed the July 29 response and SPR16/575 was opened. I closed this administrative appeal by ordering the Department to provide a supplemental response to Mr. Kershner's request to justify its exemption claims. The Department complied with this order by letter to Mr. Kershner dated September 6, 2016. In this response the Department provided responsive records, withholding others pursuant to the public safety exemption to the Public Record Law. G. L. c. 4, § 7 (26) (n). Mr. Kershner appealed, resulting in the present appeal SPR16/730. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Christine M. Pikula, Esq. SPR16/730 Page 2 September 27, 2016 Appea/161730 In its September 6 response the Department provided some responsive records. The Department explained further that certain requested records do not exist. Mr. Kershner appealed this response. Exemption (n) In particular, Mr. Kershner has narrowed his appeal to records responsive to his request number 1 from his April29, 2016 request. The Department maintains that these records are exempt pursuant to the public safety exemption to the Public Records Law. G. L. c. 4, § 7 (26) (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) 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 (April1, 2003). In its response the Department acknowledges its duty to "cite with specificity how an exemption applies." In doing so the Department states that release of records responsive to request 1, would disclose "tactics and reports ofhow a situation was handled," and would jeopardize "the safety of the public and officers." Further, the Department notes that release of responsive records would disclose "specialized training that, if the general public was made aware of, could be used by perpetrators during an assault. The same applies to the knowledge of the tools and weapons used by the team."

Ms. Christine M. Pikula, Esq. SPR16/730 Page 3 September 27, 2016 Conclusion I find the Department has satisfied its burden of specificity with respect to the records it withheld. If either party is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: Mr. Seth Kershner