Seth Kershner v. New Bedford, City of - Office of The City Solicitor (SPR 20170935)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2017 SPR17/935 Lisa A. Presby Legal Services Coordinator City ofNew Bedford- Office of the City Solicitor 133 William Street, Room 203 New Bedford, MA 02740-6163 Dear Ms. Presby: I have received the petition of Seth Kershner appealing the response of the City of New Bedford- Office of the City Solicitor (Office) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested records related to the New Bedford Police Department's (Department) Special Response Team (SRT). Previous appeal This request was the subject of a previous appeal. See SPR17 /647 Determination of the Supervisor of Records (May 23, 20 17). I closed SPR17 /64 7 with the proviso that the Department provide Mr. Kershner with a response to the request, provided in a inanner consistent with the order, the Public Records Law and its Regulations. In a response dated June 8, 2017 the Department provided Mr. Kershner with responsive records with portions redacted pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), as well as Exemption (n) of the Public Records Law. G. L. c. 4 §7(26)(a), (n); G.L c. 6, 167. Mr. Kershner appealed and SPR17/935 was opened as a result. Current appeal In his appeal petition Mr. Kershner indicates his appeal pertains to the redactions in the sections entitled "Type of Entry/Damages" and "Debriefing Issues" of each after-action review. Based on its June 81 h response, it appears the Department cited Exemption (n) in support of these redactions. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832o Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Lisa A. Presby SPR17/935 Page 2 July 24, 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. In its June 8th response the Office indicates that in Chief Cordeiro's judgment, "disclosure of the redacted portions of the SRT after action reviews would likely jeopardize public safety." You further assert " [t ]he after action reports describe the deployment strategies used by the SRT in responding to incidents as well as the tactical approaches employed by individual officers. The 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." The Office continues by stating "[d]issemination of the SRT's strategies in response to particular incidents would therefore jeopardize public safety by making it more difficult for the police to deal with threats to the public." You also note "that the fact that you are a journalist elevates the aforementioned concerns. Any information that the Department provides to you would presumably be published,

Lisa A. Presby SPR17/935 Page 3 July 24, 2017 thereby increasing the chances that its dissemination would jeopardize public safety." The Department also redacted information about weapons under Exemption (n). However, it is unclear how the redactions associated with the "Type of Entry/Damages" and "Debriefing Issues" sections relate to the type of information contemplated in the first prong of the PETA analysis. Further, the Office has not provided "sufficient factual heft" for each redaction to establish that disclosure of the information "is likely to jeopardize public safety or cyber security." For these reasons, the Department has not met its burden to justify each redaction associated with the "Type of Entry/Damages" and "Debriefing Issues" under Exemption (n). 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