Michael Dreslinski v. Lexington, Town of - Police Department (SPR 20171253)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2017 SPR17/1253 Captain Michael McLean Town of Lexington- Police Department 1575 Massachusetts Ave Lexington, MA 02420 Dear Captain McLean: I have received the petition of Michael Dreslinski appealing the response ofthe Town of Lexington 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, on August 21, 2017, Mr. Dreslinski requested the following two categories of records relating to the manufacture of the Department's vehicles and the Department's "evidence log" sheets: 1. Records to the manufacturer and/or supplier of patrol or 'cruiser' vehicle for the Lexington Police which specifies the type of modifications made to the vehicle (emergency light, vehicle paint/lettering, etc.). For the purpose of this public record request, the aforementioned records shall only apply to the Department's most recent vehicle purchase; and 2. Blank (unused) copy ofthe document used to log/track evidence collected by Lexington Police. The Department provided a response on August 28, 2017, which denied Mr. Dreslinski access to the records pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 26(n). Unsatisfied with the Department's response, Mr. Dreslinski petitioned this Office and this appeal, SPR1711253, was opened as a result. 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). 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

Captain Michael McLean SPR16/1253 Page 2 September 20, 2016 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 exenJ.ption). 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's August 28th response In the Department's August 28th response, it indicated that Request Number 1 "has been denied in accordance with the Massachusetts Public Records Law, Exemption N, as I believe the information clearly relates to information which if released is likely to jeopardize public safety." Exemption (n) The Department indicated its intent to withhold the responsive records under Exemption (n) ofthe Public Records Law. Exemption (n) permits the withholding of: 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. 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.

Captain Michael McLean SPR16/1253 Page 3 September 20, 2016 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. The Department's response merely states that the responsive records may be withheld under Exemption (n) because its "release is likely to jeopardize public safety" without providing any concrete examples of how the public's safety would be jeopardized by releasing this information. As such, I find that the Department has not met its burden in proving with specificity how the requested records may be withheld under Exemption (n). No duty to create records With respect to Request Number 2 for a "blank (unused) copy of the document usedto log/track evidence ... ," the Department indicated that, it" ... does not have possession, custody, or control of the records requested." Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Department explains it "does not have possession, custody or control of the records requested," I find that Mr. Dreslinski's appeal related to the second request is resolved. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion I find that in its application of Exemption (n), the Department has not provided sufficient factual heft to demonstrate how Exemption (n) applies in this situation. Whereas the Department intends to issue a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provides said response 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

Captain Michael McLean SPR16/1253 Page 4 September 20, 2016 response to this office at pre@sec.state.ma.us. Mr. Dreslinski may appeal the substantive nature ofthe response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski