Seth Kershner v. Fall River, City of - Police Department (SPR 20170800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 28, 2017 SPR17/800 Sergeant Bryan Nadeau Custodian of Public Records Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Sergeant Nadeau: I have received the petition of Seth Kershner appealing the response of the Fall River 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 several categories of records related to the Department's Emergency Services Unit (ESU). In a response dated May 25, 2017 the Department provided certain records and withheld others under Exemptions (b), (d), (f) and (n) ofthe Public Records Law. G. L. c. 4, § 7(26)(b), (d), (f), (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, § 10A(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, § 10(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

Sergeant Bryan Nadeau SPR17/800 Page2 June 28, 2017 Current appeal In his appeal petition Mr. Kershner indicates his appeal solely pertains "after action reviews, breakdown of deployments by crime, purpose of the raid and any post-deployment documentation." He explains he is "asking the Fall River Police Department to release after action reviews for each time its ESU deployed from January 1, 2015 until the present." The Department cited Exemptions (f) and (n) in support of its position to withhold these records. Exemption (f) Exemption (f) 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. In the Department's May 25th response you claim "that although at this moment there is no active investigation per se, the core fundamental tactics, techniques, and procedures are consistently used in each deployment and providing such information from past incidents, could potentially alert suspects to the activities of investigative officials." However, it is unclear whether any portions of the responsive records could be provided that would not "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, I find the Department has not met its burden to withhold responsive records in their entirety under Exemption (f).

Sergeant Bryan Nadeau SPR17/800 Page 3 June 28, 2017 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 jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA .decision further provides that "[b] ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. The Department indicates "[i]t is the judgment of the Records Officer that such information contained in these records (after action review, deployments based on crime, purposes of the raid, and post-deployment documentation) would reveal strategic and investigative techniques of the Fall River Police Department's Emergency Services Unit." You also state "[i]f such information is released to the public, it would prejudice further efforts ofthe Emergency Services Unit as individuals could use this sensitive information to avoid detection and/or arrest in future instances and foil future investigating, observing, and surveillance techniques and that such techniques are of confidential in nature that disclosure of them would prejudice future ESU efforts." The Department further provides "[a]lthough the nature of deployment is inherently dangerous, it is imperative that our Emergency Services Unit limit the level of threatening activity against them in these situations and to provide this sensitive information provides an immeasurable level of threat to their safety as well as the public's safety."

Sergeant Bryan Nadeau SPR17/800 Page4 June 28, 2017 In light of the two prong analysis articulated in the PETA decision, it is unclear how the "after action reviews" may be withheld in their entirety under Exemption (n). 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, 378 Mass. at 289-90 (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 you and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Department is ordered to 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