Brooks A. Ames v. Brookline, Town of - Office of the Town Counsel (SPR 20170064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 27, 2017 SPR17/064 Patricia Correa, Esq. First Assistant Town Counsel Town of Brookline Office of the Town Counsel 333 Washington Street, 61 h Floor Brookline, MA 02445 Dear Attorney Correa: I have received the petition of Brooks Ames, Esq., on behalf of his client, appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Ames requested a copy of the Town's Incident Plan developed by the Town's Police Department. The Town is withholding the Incident Plan pursuant to Exemption (n) of the Public Records Law. Attorney Ames has appealed the Town's denial. 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, § 1 0( 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. Right of access depends on content of records rather than interest of requester In his petition to this office, Attorney Ames mentions that he is entitled to a copy of the 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

Patricia Correa, Esq. SPR17/064 Page 2 January 27, 2017 Incident Plan because it was drafted by the Town's Police Department (Department) prior to a meeting involving his client and the Town. It is important for Attorney Ames to understand that the status or interests of his client in the content of the record affords no greater right of access than any other individual in the public realm. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the status of Attorney Ames or his client will play no role in a determination as to whether the records should be disclosed to the public. Exemption (n) In your December 21st and December 22, 2016 email responses to Attorney Ames's public record request, as First Assistant Town Counsel, you explained that the Town has withheld the requested Incident Plan pursuant to Exemption (n) of the Public Records Law. 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) 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. 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. In email responses to Attorney Ames on December 21, 2016, December 22, 2016, January 13, 2017, January 18,2017 and January 19,2017, the Town failed to provide the specificity necessary concerning the content of the Incident Plan to support withholding the record in its entirety pursuant to Exemption (n) of the Public Records Law. However, during telephone discussions with an attorney on my staff on January 13th and January 26th, the Town provided additional information, revealing the entire content of the record to my staff attorney in order to support its Exemption (n) claim. This office learned that the Incident Plan contains information concerning how the Department and other public safety officials and public safety personnel might respond to any incident likely to cause safety concerns and/or issues to the public-at-large, including but not

Patricia Correa, Esq. SPR17/064 Page 3 January 27, 2017 limited to demonstrations, rallies and protests that morph into umest or any other situation that may morph into a public safety issue. The Incident Plan includes specific information, such as: the likely scenarios in which certain response and deployment of officers may be necessary, who will respond, how and from where the response and deployment will come from, how few or many officers might respond, the procedures that may be employed and when, the equipment and possible weapomy may be used. The policies and procedures in the Plan are currently being utilized and may be utilized again in the future by the Town. Disclosure of the safety and security procedures oflaw enforcement and public safety personnel may enable individuals to assess and circumvent the practices, procedures, deficiencies, threats and areas of vulnerability regarding the safeguarding of persons, buildings and other infrastructure in the Town. Furthermore, the disclosure of safety and security measures put in place may allow persons with threatening behavior, or a potential propensity to physical attacks or other nefarious motives to circumvent the deployment of the safety and security procedures, which in turn is likely to jeopardize the safety of the public at large. I find that the Town has met its statutory and regulatory obligation under the Public Records Law of supporting its Exemption (n) claim to withhold the content regarding the safety and security policies and procedures in the Incident Plan. Accordingly, I find that the Town may properly withhold those portions of the Incident Plan regarding the safety and security policies and procedures pursuant to Exemption (n) and release the balance of the Incident Plan. I will consider this appeal closed with the proviso that the Town provides Attorney Ames with a copy of the Incident Plan, redacted where applicable pursuant to Exemption (n) of the Public Records Law, within ten (1 0) days, and in a manner consistent with this order, the Public Records Law and its Regulations. If the Town provides Attorney Ames with a written, good faith fee estimate or a cover letter to accompany the record, a copy of any such response should 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. If Attorney Ames 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Ames, Esq.