Seth Kershner v. Malden, City of - Police Department (SPR 20171138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 5, 2017 SPR17/1138 Lieutenant Jon Crannell City of Malden Police Department 800 Eastern A venue Malden, MA 02148 Dear Lieutenant Crannell: I have received the petition of Seth Kershner appealing the response of the City of Malden 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 seven (7) categories of records pertaining to the Special Operation Unit (SOU). The Department initially provided a response on August 21, 2017 and denied Mr. Kershner responsive records under Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). Subsequent to the opening of this appeal the Department provided a supplemental response dated August 23, 2017. Mr. Kershner notes this response satisfies requests 3, 6, and 7. However, the Department continues to withhold records responsive to requests 1, 2, 4, and 5 under Exemption (n). Mr. Kershner objects to this position. 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 custodian· to demon.strate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(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). 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

Lt. Jon Crannell SPRl 7/1138 Page 2 September 5, 2017 Exemption (n) The Department is withholding records responsive to requests 1, 2, 4 and 5 pursuant to Exemption (n) of the Public Records Law. 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 Jecause 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's response states that the responsive records may be withheld under Exemption (n) because "release of th~ incident reviews," "deployment strategies," and "training information" could compromise the effectiveness of the SOU in the future and create a risk to officers and public safety. It is the Department's position that to release the records "would allow a criminal element to take advantage of these records and whether used for debate or nefarious use the release could do more harm than good." However, it is unclear how the entirety of records responsive to requests 1, 2, 4 and 5 pertains to the type of information contemplated in the first prong of the PETA analysis. Further, the Department has not provided concrete examples of how the public's safety would be jeopardized by releasing the records either entirely or in a redacted form. As such, the Department has not provided "sufficient factual heft" to establish how disclosure of the information is likely to jeopardize public safety or cyber security. For these reasons, the

Lt. Jon Crannell SPRl 7/1138 Page 3 September 5, 2017 Department has not met its burden to justify withholding records responsive to requests 1, 2, 4, and 5 under Exemption (n) in their entirety. 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). 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 about this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Kershner a response concerning requests 1, 2, 4 and 5 in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of the 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