Todd Feathers v. Dracut, Town of - Town Manager (SPR 20170260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 13, 2017 SPR17/260 James A Duggan Town Manager Town of Dracut 62 Arlington Street Dracut, MA O1 826 Dear Mr. Duggan: I have received the petition of Todd Feathers of The Lowell Sun appealing the response of the Town of Dracut - Town Manager (Town) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Feathers requested a copy of the independent evaluation of the Town's Police Department's evidence room which was conducted in September 2016. The Town denied the request pursuant to Exemptions (b), (f) and (n) of the Public Records Law. Mr. Feathers appealed. Appeal to the Supervisor You informed this office that the Town's Records Access Officer (RAO) did not receive a copy of Mr. Feathers' petition to Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that a Public Records Division attorney provided you with a copy of the appeal file via email. Mr. Feathers is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1 )(h) (January 1, 2017 Ed.). 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, § lOA(d); 950 C.M.R. 32.03(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). 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

James A. Duggan SPRl 7/260 Page 2 March 13, 2017 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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Waiver With this request, Mr. Feathers requested that the Town waive all applicable fees, as the request is made in the public interest. Records access officers may waive or reduce the amount of any assessed fee upon a showing that, "disclosure of a requested record is in the public interest; the request for records is not primarily in the commercial interest of the requester; or the requester lacks the financial ability to pay the full amount of the reasonable fee. Exemption (b) The Town indicated in its February 24th letter its intent to withhold the report pursuant to Exemption (b) of the Public Records Law. 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) There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable

James A. Duggan SPR17/260 Page 3 March 13, 2017 outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In Massachusetts, the records access officer or custodian generally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. The Town stated in its response that "the report concerns specific internal processes which the Town's Police Department (Department) uses and utilized in the seizure, packaging, identification, security, storage and purging of evidence which are proprietary, internal practices of the Department." Exemption (I) The Town is also withholding the report pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, 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)(±) 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, 3 78 Mass. 281,290 n.18 (1979). In your response you explained to Mr. Feathers that the report is currently under review by the Office of the Middlesex County District Attorney to ensure all pending case evidence is being appropriately secured, maintained and categorized. The Town believes release of the report would be premature and would compromise continuing investigative efforts in conducting this review. Exemption (n) Finally, the Town posits that the report may be withheld pursuant to Exemption (n) of the

James A. Duggan SPRl 7/260 Page4 March 13, 2017 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, cyber security 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 (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. 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. The Town states that "the report contains with detailed specificity, specific locations (Evidence room, Drug room, Property room and Gun room) and security access systems providing for the protection of evidence to be used in the prosecution of criminal matters." The Town asserts that release of the report could be used to breach those high security area mentioned above, inhibiting and compromising a necessary law enforcement function. Conclusion -Burden of Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1O (b )(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town's response d1d not contain the level of specificity required in a denial of access to public records. While the Town cites Exemptions (b), (f) and (n), the Town has not provided enough explanation to allow the Town to withhold the audit/evaluation report in its entirety. A custodian of records has a duty to segregate exempt material from a record, and provide the balance of the record whenever possible. As a result, I find that the Town has not satisfied its statutory and regulatory burden under the Public Records Law and Access Regulations in responding to Mr. Feathers' records request. Accordingly, whereas the Town has indicated to a Public Records Division attorney that a further response will be provided concerning the request and exemption claims, I will consider this appeal closed with the proviso that the Town provides the response to Mr. Feathers, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to

James A. Duggan SPRl 7/260 Page 5 March 13, 2017 send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Feathers may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32.08(1 ). Sincerely, !YrlAJNt4c!f Rebecca S. Murray Supervisor of Records cc: Todd Feathers