Seth Kershner v. Greenfield, City of - Police Department (SPR 20171074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 16, 2017 SPR17/1074 Deputy Chief Mark A. Williams Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Chief Williams: I have received the petition of Seth Kershner appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested seven categories of records related to the deployment of the Franklin County Regional Special Response Team (SRT). In a response dated August 4, 2017, the Department provided certain responsive records but withheld other records under Exemptions (b), (f), and (n) ofthe Public Records Law. G. L. c. 4, § 7(26)(b), (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, § 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 Department 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, § 10(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

Deputy Chief Mark A. Williams SPR17/1074 Page 2 August 16, 2017 Current appeal Mr. Kershner indicates he objects to the Department's withholding of records responsive to the following categories of his request: category 1 ("Incident reports, after action reviews, or other written reports documenting each time the Special Response team was deployed"); category 4 ("training-related documents"); and category 5 (equipment information). Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7 (26)(b ). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. 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, 3 71 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

Deputy Chief Mark A. Williams SPR17/1074 Page 3 August 16, 201 7 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. 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 l 0 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. Burden ofs pecificity; segregable portions With respect to category 1, the Department provided certain police log entries. However, you assert "I am citing exemptions (b), (f) and (n) in not releasing the incident reports or after action reviews involved with the SRT Team." Regarding category 4, you state "[t]he team conducts regular training sessions locally, and its members have also completed training courses at the Sig Sauer Academy in Epping, New Hampshire. I am citing exemptions (b), (f) and (n) relating to the specific training received by the team members." With respect to category 5, you provide information about how equipment was purchased but also notes "I will not provide a detailed list of equipment, citing exemption (n)."

Deputy Chief Mark A. Williams SPR1711074 Page 4 August 16, 2017 Although the Department cites Exemptions (b), (f), and (n) with respect to categories 1, 4, and 5, it has not met its burden of specificity to establish how the exemptions apply to withhold these records in their entirety. See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). 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). Further, it is unclear what type of responsive records the Department possesses. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10 ( a)(ii). 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