Seth Kershner v. Chicopee, Town of - Police Department (SPR 20171065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 16, 2017 SPR17/1065 Louis F. Vezina Jr. Chicopee Police Department 11 0 Church Street Chicopee, MA 01 020 Dear Mr. Vezina: I have received the petition of Seth Kershner appealing the response of the Chicopee Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on July 10, 2017, Mr. Kershner requested seven categories of documents relating to the Department's "Special Response Team." On August 4, 2017, the Department provided certain records and withheld others under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(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, § 1O (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

Louis F. Vezina Jr. SPR17/1065 Page 2 August 16, 201 7 The Department's August 41 response h In its August 4th response, the Department explained that it has withheld certain portions of the responsive records pursuant to Exemption (n) ofthe Public Records Law. 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 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize 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 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 response, the Department indicated that "[w]hile these documents are subject to disclosure, the City continues to invoke the public safety exemption for the following requests listed as 1, 4 and 5 in attached Exhibit A."

Louis F. Vezina Jr. SPR17/1065 Page 3 August 16, 2017 For the first category, requesting "[a]ll after-action reviews or other written reports documenting each time the SRT was deployed" as well as "[a]ny reports showing breakdowns of SRT deployments by crime, requesting agency, or purpose for the raid (e.g., to serve a warrant, arrest someone, defuse a hostage crisis, etc.) and any post-deployment documentation," you indicated that the City withheld the documents requested because "the release of tactics and reports of how a situation was handled could compromise future SRT call out and incidents and jeopardizes the safety of the public and officers." In light ofthe two prong analysis in the PETA decision, it is unclear how the "after-action reviews" may be withheld in their entirety under Exemption (n). It is also not apparent how certain information such as the purpose of a raid could jeopardize the safety of the public and officers. Further, the fourth category requested "[a]ny documents relating to the structure or mission of the SRT team in any aspect of its operation," including "information about training with military units and other outside agencies and contractors, when and where trainings took place, and who conducted them." The fifth category also requested "[a]ny records relating to the procurement, maintenance or deployment of SRT team weapons and other equipment, including guns, vehicles, personal protective equipment and uniforms, surveillance and reconnaissance equipment, less-than-lethal devices, force entry tools and weapons and equipment that may have been obtained through the Defense Department's '1033 program,"' including "documents showing how and when SRT equipment is used, whether it was purchased, leased or borrowed from outside agencies, how it is stored, and who has access to it." The Department indicated that the records were withheld "as the release of this information compromises safety of [the] public and officers." You also indicated that "it is specialized training that if the Public was made aware of, could be used by perpetrators during an assault." You further indicated that "[t]he same applies to the knowledge ofthe tools and weapons used by the team." In regards to category four, Mr. Kershner has narrowed his request and explains that he does not seek details that could potentially be used by perpetrators but rather "documents showing the title of the training course, the date of the training" to ensure that "officers within Chicopee SRT are getting trained according to the standards of the National Tactical Officers Association." I find that the Department has not met its burden in explaining with specificity how basic information about the title of the training course and date of the training could compromise the safety of the public and officers or make perpetrators aware of any specialized training. Also for records in category 5, it is unclear from the Department's response whether there are any portions of the responsive records that could be disclosed without the likelihood of compromising the safety of the public and officers. Accordingly, I find that the Department has not provided "sufficient factual heft" for each withheld record to establish that disclosure of the information "is likely to jeopardize public safety." For the above reasons I find that the Department has not met its burden to show how all the responsive records in these categories are exempt from disclosure under Exemption (n). The statutory exemptions are narrowly construed

Louis F. Vezina Jr. SPR17/1065 Page4 August 16, 201 7 and not blanket in nature. Therefore any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein, 378 Mass. at 289-90; G. L. c. 66, § 10(a). 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. Mr. Kershner may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~M~ Supervisor of Records cc: Seth Kershner