Todd Feathers v. Dracut, Town of - Town Manager (SPR 20170403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 11, 2017 SPR17/403 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) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Feathers requested a copy of the report regarding a September 2016 audit/inventory of the evidence room at the Town's Police Department. The Town has denied the request for the second time pursuant to Exemptions (b), (f) and (n) of the Public Records Law. The requested report was the subject of a previous appeal. See SPRl 7 /260 Supervisor of Records Determination (March 13, 2017). In my March determination, I found that the Town's response did not contain the level of specificity required in a denial of access to public records, and to satisfy its statutory and regulatory burden under the Public Records Law and Access Regulations in responding to Mr. Feathers' record request. The Town's March 29th response provided as a result of my March 13th determination states that the Town is still withholding the report in its entirety pursuant to Exemptions (b), (f) and (n). Mr. Feathers appealed your March 29th response. 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). 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 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 7/403 Page 2 April 11, 2017 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (b) The Town is still withholding the report in its entirety pursuant to Exemption (b) of the Public Records Law. Your March 29th response states that the report contains specific information relating to the way the Town's Police Department (Department) handled evidence and property when it came into possession of it, and that it is those internal personnel rules and practices that are the exact focus of the current review by the Office of the Middlesex District Attorney (District Attorney). Exemption (b) permits the withholding ofrecords 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 Dep't of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information 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 oflnformation Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, 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 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). As I advised the Town in my March 13th determination, in Massachusetts, the criteria for withholding records pursuant to Exemption (b) requires the Records Access Officer to prove that

James A. Duggan SPR17/403 Page 3 April 11,2017 the record or 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 of the record to the public. While the Town has claimed that the report relates solely to internal personnel rules and practices, your response merely states that the report should be withheld during the pendency of the review by the District Attorney. The Town has still failed to show how the public disclosure of even a redacted report would inhibit the proper performance of the Department. Therefore, I find that the Town has not met its burden to withhold the report in its entirety pursuant to Exemption (b ). Exemption (n) The Town posits that the report may be withheld 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, 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 or cyber security. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety or cyber security. 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 continues to assert that release of the report to the public could allow individuals with access to the contents of the report to breach those high security areas mentioned above, inhibiting and compromising a necessary law enforcement function. I find that the Town has not supported its Exemption (n) claim to withhold the report in its entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a).

James A. Duggan SPRl 7/403 Page 4 April 11, 2017 Exemption (I) In your March 29th response, you affirm the Town's decision to withhold the report in its entirety 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)(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). In your first response, you explained to Mr. Feathers that the report is currently under review by the Office of the Middlesex County District Attorney (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. Your March 29th letter states that the report contains information concerning an on-going internal review that may become the essence of personnel actions should this review by the District Attorney uncover malfeasance, misfeasance or nonfeasance on the part of employees overseeing the evidence function. You further posit that release of the report would be premature and would inhibit the ability to fully investigate and pursue any wrongdoing as a result of the review. You explained in your March 29th letter and in a conversation with a Public Records Division attorney that the District Attorney was consulted and has advised the Town that the report should be withheld until the District Attorney completes its review and a determination is made whether any personnel action or criminal charges are appropriate. Finally, you informed Mr. Feathers, "[T]here is no intention to keep any action or inaction as it relates to the Department secret; however we have an obligation to keep any on going internal review confidential for the duration of any pending investigation related to a potential personnel action." Absent a written confirmation from the District Attorney supporting the contention that public disclosure of the report will jeopardize the District Attorney's investigational review of the Department, I find that the Town has not met its burden of withholding the report in its entirety under Exemption (f) because it has not demonstrated how disclosure of the report 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).

James A. Duggan SPR17/403 Page 5 April 11, 2017 Order - 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)(e mphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857(1995); Flatley, 419 Mass. at 511. Furthermore, a custodian of records has a duty to segregate exempt material from a record and provide the balance of the records whenever possible. As a result, 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, the Town is hereby ordered to provide Mr. Feathers with the responsive report, redacted where necessary under the exemptions in the Public Records Law, and provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any response that accompanies the record 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Todd Feathers