Seth Kershner v. New Bedford, City of - Police Department (SPR 20170647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 23, 2017 SPR17/647 Joseph C. Cordeiro Chief of Police New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Chief Cordeiro: I have received the petition of Seth Kershner appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested records related to the Department's Special Response Team (SRT). In a response dated May 3, 2017 the Department provided certain records and withheld others under Exemptions (d) and (n) of the Public Records Law. G. 1. C. 4, § 7(26)(d), (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, § 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 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Joseph C. Cordeiro SPRl 7/647 Page 2 May 23, 2017 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Current appeal Mr. Kershner' s appeal is based on his objection to the withholding of "after action reviews." The Department cited Exemption (n) in support of its position to withhold these records. 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, 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. In the Department's May 3rd response you indicate "[i]n my judgment, disclosure of the SRT incident reports and after action reviews would likely jeopardize public safety." You also explain "[t]he incident reports and after action reviews describe the deployment strategies used by the SRT in responding to incidents as well as the tactical approaches employed by individual officers." You further assert that "[t]he dissemination of the SRT's tactical approaches and deployment strategies could inform potential perpetrators of the types of response approaches employed by the Department, which in turn could enable them more effectively to resist police intervention in dangerous situations."

Joseph C. Cordeiro SPRl 7/647 Page 3 May 23, 2017 However, it is unclear whether there are any portions of the responsive records that could be disclosed without likely jeopardizing public safety. Therefore, I find the Department has not met its burden to show how all the responsive records, in their entirety, are exempt from disclosure. 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). I understand a Public Records Division staff attorney contacted a member of the New Bedford City Solicitor's Office who indicated the Department would provide another response to Mr. Kershner. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Kershner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner Lisa A. Presby