Seth Kershner v. New Bedford, City of - Office of The City Solicitor (SPR 20171071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 15, 2017 SPR17/1071 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 (City) 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 appeals This request was the subject of previous appeals. See SPR17/647 Determination ofthe Supervisor ofRecords (May 23, 2017). See SPR17/935 Determination of the Supervisor of Records (July 24, 20 17). I closed SPR17 /93 5 by ordering the City to provide Mr. Kershner with a response to the request, provided in a in a manner consistent with the order, the Public Records Law and its Regulations. In a response dated August 7, 2017, the City provided Mr. Kershner with a less redacted version of the records as well as a supplemental response explaining the City's rationale for the redactions made pursuant to Exemption (n) of the Public Records Law. G. L. c. 4 §7(26)(n). Mr. Kershner appealed and SPRl 711071 was opened as a result. Current appeal In his appeal petition Mr. Kershner notes that the "'DEBRIEFING ISSUES" sections for three after-action reviews were left in their redacted state." Mr. Kershner indicates that "rather than redacting these sections in their entirety, through this appeals process I am asking that the City be more selective and choose to release a greater portion of 'DEBRIEFING ISSUES."' Mr. Kershner also indicates he believes that that these sections "will likely contain constructive 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

Lisa A. Presby SPR17/1071 Page 2 August 15,2017 criticism of a SRT team operation-not the sort of information that would fall within the purview of [E]xemption (n).'.' 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 ofthe particular case." Id. The City provides that "[b] roadly speaking, though, we have retained redactions that reflect policies and procedures employed by the SRT in confronting dangerous individuals, including terrorists." You cite to Department Directive #97 -62 which notes "the SRT deals with 'special threats,' which are defined as situations involving 'a sniper, barricaded suspect, hostage taking or terrorist activity that is beyond the capability of standard patrol resources, or any other situation where the Special Reaction Team's special training and expertise would be required." The City further asserts "because one of the SRT ' s primary purposes is to address terrorist activity, it stands to reason that terrorists would find knowledge of the SRT's policies and procedures 'useful to maximize damage.' The redactions therefore easily fulfill PETA 's first prong and lower the city's burden with respect to the second prong." With respect to each

Lisa A. Presby SPR17/1071 Page 3 August 15, 2017 redaction in the "Debriefing Issues" section of the reports, the City indicates "they reflect policies and procedures employed by the SRT in confronting dangerous situations. In the Police Department's judgment, the disclosure of the redacted information would jeopardize public safety because it would effectively provide terrorists with a roadmap of how to disrupt and/or sabotage the SRT's operations." However, it is unclear how the entirety of the information redacted in "Debriefing Issues" sections pertains to the type of information contemplated in the first prong ofthe PETA analysis; specifically, it is unclear how this information reflects policies and procedures and not post incident "constructive criticism of a SRT team operation" as Mr. Kershner suggests. Also, it does not appear the City provided an explanation for the redactions in the report dated April 9, 2013. Further, the City has not provided "sufficient factual heft" for each redaction in the "Debriefing Issues" to establish how disclosure of the information is likely to jeopardize public safety or cyber security by providing "terrorists with a roadmap of how to disrupt and/or sabotage the SRT's operations." For these reasons, the City has not met its burden to justify the entirety of each redaction associated with the "Debriefing Issues" section under Exemption (n). I understand a Public Records Division staff attorney contacted you and you indicated the City would provide a supplemental response to Mr. Kershner. Conclusion Accordingly, I will consider this appeal closed with the proviso that the City 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. In camera review In the alternative, in order to facilitate a determination as to the applicability of exemption claims made by the City, the City may provide this office an unredacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Lisa A. Presby SPR17/1071 Page 4 AugusU5, 2017 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.· The City may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner