Seth Kershner v. Fall River, City of - Police Department (SPR 20171228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 22, 2017 SPR17/1228 Sergeant Bryan Nadeau City of Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Sergeant Nadeau: I have received the petition of Seth Kershner appealing the response of the City of Fall River 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, Mr. Kershner requested "after-action" reports of the Department's Emergency Services Unit from January 1, 2015 until the present. The Department provided Mr. Kershner with redacted "after-action" reports. Mr. Kershner objected to the redactions of the "Execution" section of the reports and appealed to this office. Prior appeals and determinations The responsive records were the subject of two prior appeals and determinations. See SPR17/800; SPR17/1060 Determinations ofthe Supervisor of Records (June 28, 2017; August 11, 20 17). In my August 11th determination, I ordered the Department to provide a detailed response concerning what content was redacted from the "after-action reports" pursuant to Exemption (b), (c), (f) and (n). The Department provided a response on August 16th; however, Mr. Kershner appealed the August 16th response, and the current appeal was opened. 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). 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

Sgt. Bryan Nadeau SPR17/1228 Page 2 September 22, 2017 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, § 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. In his September 6th petition, Mr. Kershner states that he does not object to the redaction of names and other identifying information contained in the "after-action" reports pursuant to Exemption (c). However, Mr. Kershner has appealed the Department's redactions of the Execution Section of the reports pursuant to Exemptions (b), (f) and (n) of the Public Records Law and particularly the lack of specificity explaining how these exemption claims apply to the redacted records. 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. In its response, the Department indicates, "[i]nformation regarding the procedures used by the Department's Emergency Services Unit during law enforcement efforts relates solely to the internal workings of the Department. Moreover, disclosure of this information could prove detrimental to the Department's law enforcement efforts, as knowledge of certain security and emergency response procedures could enable someone to circumvent such procedures. This could be critically dangerous to the officers that are within the Emergency Services Unit." The Department's August response is vague and lacks concrete examples to support its Exemption (b) claim. To effectively apply this exemption, the Department needs to identify and specify how and why the disclosure of the content within the Execution Section of the "after action" reports would hinder the performance of its governmental functions. I find that the

Sgt. Bryan Nadeau SPR1711228 Page 3 Septt:{mber 22, 2017 Department has not met its burden of supporting its Exemption (b) claim to withhold content within the Execution Section of the "after-action" reports. Exemption (/) 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 S G. L. c. 4, 7 (26)(£). 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, 371 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 Commissioner of Boston, 3 78 Mass. 281, 290 n.l8 (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. In its August response, the Department stated, "[t]he information that was redacted under Exemption (f) was redacted because it would reveal investigative techniques of the Emergency Services Unit. If certain information that assures the safety of the officers and the general public were given out, it could make it unable to effectively protect the officers and the citizens within our city." Mr. Kershner has stated in his petition that SWAT tactics have been widely discussed in the media for years, and there has been tremendous media coverage of SWAT operations, including a major front-page expose in the Sunday New York Times in March. He also states, "[t]he general public has been exposed to reality TV shows that show-up close and with little left to the imagination-how SWAT deployments work." I find that the Department has not met its burden to specify how its investigative techniques are so confidential that the public would have no knowledge of them, and that these investigative techniques cannot be disclosed. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and

Sgt. Bryan Nadeau SPR17/1228 Page 4 September 22, 2017 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. It is the duty ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The Department's response states, "[i]nformation under Exemption (n) applies as individuals could use the security measures and emergency preparedness plans/equipment to breach our effectiveness at protecting the officers and citizens of the city. It is imperative that our Emergency Services Unit limit the level of threatening activity against them during these dangerous situations." The Department has not provided concrete examples of how the public's safety would be jeopardized by releasing the content in the Execution Section that the Department redacted under Exemption (n). As such, I find that the Department has not met its burden in proving with specificity how the redacted content in the report may be withheld under Exemption (n). Specificity in claiming exemptions The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's response did not contain the specificity required in a denial of access to content in public records. Instead, the Department's August response merely cites Exemptions (b), (f) and (n), without concrete examples and explanation as to those exemptions' applicability to the content redacted from each of the "after-action" reports, in particular the Execution Section of each of the reports. Subsequent to the intervention by an attorney in the Public Records Division staff, the Department has indicated it will provide a supplemental response. Conclusion Whereas this matter was opened based upon the Department's failure to provide a substantial written response, I will now consider this administrative appeal closed with the

Sgt. Bryan Nadeau SPR17/1228 Page 5 September 22, 2017 proviso that a supplemental response is provided to Mr. Kershner, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) days. Mr. Kershner may appeal the substantive nature of the Department's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner