Seth Kershner v. New Bedford, City of - Office of The City Solicitor (SPR 20171270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 25, 2017 SPR17/1270 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 ofthe 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 Special Response Team (SRT). 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, § 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). 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. Previous appeals This request was the subject of previous appeals. See SPR17/647 Determination ofthe Supervisor of Records (May 23, 2017); SPR17/935 Determination ofthe Supervisor of Records (July 24, 2017). I closed SPR17/935 by ordering the City to provide Mr. Kershner with a 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 SPR17/1270 Page 2 September 25, 2017 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 SPR17/1 071 was opened as a result. In a response dated September 1, 2017, the City provided Mr. Kershner with a less redacted version of the records and a supplemental response further 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 the response regarding "two specific incident reports" and identifies the reports as "29 March 2013" and "16 March 2017." SPR17/1270 was opened as a result. Current appeal In his appeal petition, Mr. Kershner notes he previously asked the City "to be more selective in their redactions" and indicates the following regarding the City's September 1st response: "[the City] chose to release a great portion of the ["Debriefing Issues" sections] included in certain after-action reviews;" the City "invoked the threat of terrorist activities as a blanket justification for retaining said redactions;" and the City argues the "constructive criticism" portions are "protected from disclosure under [E]xemption (n) because information about mistakes made by the police 'would be useful to a terrorist in maximizing damage."' See SPR17/1071. Additionally, Mr. Kershner's states he "wish[es] this appeal to pertain specifically to two incident reports" identified as "29 March 2013" and "16 March 2017." Id. Accordingly, this response is limited to the two corresponding records. 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).

Lisa A. Presby SPR17/1270 Page 3 September 25, 2017 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. Incident Report: 29 March 2013 Regarding the March 29, 2013 SRT after action report, Mr. Kershner asserts that in this record "it is clear that mistakes were made by responding officers." Further, he indicates that due to the redactions "reading and making sense of the incident would be impossible." Mr. Kershner asserts the City "has not met its responsibility to show the basis for its exemption claim." The City's September 1st response included fewer redactions and supplemental explanations for the remaining redactions (identification of what the redacted information contains and how it would be useful to a terrorist in maximizing damage). See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The City identifies the redacted information to include "procedures that are employed by ... the SRT team in its operations," "equipment and communication channels used by the Command Post," "[description of] conduct that should not occur during an SRT operation," "[descriptions] of a critical [pieces] of equipment ... used" or "employed" during "SRT operations," and "[description] of a piece of equipment that the Police Department believes would be useful during SRT operations". Further, the City explains that this information would be "useful to terrorists to maximize damage" as release of the information would allow for access to critical procedures and the SRT's "areas of emphasis" and risk destruction or compromise of the SRT team's equipment and "communication channels" resulting in "sabotage" of SRT operations. Based on the City's release of previously redacted information, description of the information remaining redacted, which includes conduct, procedures, communication channels, and equipment used by the SRT team, I determine such information sufficiently resembles records listed in Exemption (n). Coupled with the City's explanation of how the information would be "useful [to terrorists] to maximize damage," the City demonstrates its likelihood to be used for terrorist activity as such information is the type of information contemplated in the first prong ofPETA. See also SPR17/1071. Additionally, I note the City's August ih response in

Lisa A. Presby SPR1711270 Page 4 September 25, 2017 · which they explain "the SRT deals with 'special threats' which are defined as situations involving 'a sniper, barricaded suspect, hostage taking or terrorist activity."' The detail stated above as provided by City's response, possesses the sufficient factual heft for each redaction to establish how disclosure of the information is likely to jeopardize public safety or cyber security by providing terrorists a roadmap of how to disrupt and/or sabotage the SRT's operations. The City explains line-by-line how each redaction possesses information pertinent to operations of the SRT whose general purpose is public safety as they deal with highly dangerous situations including terrorism. Accordingly, I find the City has met its burden in establishing the applicability of Exemption (n) under the Public Records Law, permitting the withholding of the redacted information contained in the "SRT After Action Report" dated "3/29117." Incident Report: 16 March 2017 In Mr. Kershner's appeal he indicates the "narrative" of the referenced report remains redacted. I understand this to mean the redacted information within the section titled "Remarks" within the after action report with a date of occurrence listed as March 15, 2017. This office notes that this redacted portion of the report, the "Remarks" section, was not subject to the previous appeals as the redacted information is not within a section titled "Types of entry I Damages" or "Debriefing Issues." See 17/1071; SPR17/935. Additionally, the "narrative" portion of the report was not subject to Mr. Kershner's first appeal as the redacted after action report for March 15, 2017 was not provided to Mr. Kershner in the City's initial response. See SPR 17/647. Accordingly, this office refers to the City's June 8, 2017 response in its determination ofthis appeal. Additionally, this office notes that Mr. Kershner's appeal takes issue with the application of Exemption (n), and our analysis will be limited accordingly. In its June 8th response, the City states that the redacted records provided to Mr. Kershner are redacted pursuant to Exemption (n) and the Criminal Offender Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law. However, it is unclear what information is contained within the redacted portion and how it is exempt from disclosure under an exemption of the Public Records Law. 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 City's response did not contain the specificity required in a denial of access to public records. Instead, the City's response merely cites Exemption (n) without any further explanation as to the exemption's applicability to the requested records. The City is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the City did not satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to

Lisa A. Presby SPR17/1270 Page 5 September 25, 2017 specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I understand a Public Records Division staff member 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. Mr. Kershner may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). 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. 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.

Lisa A. Presby SPR1711270 Page 6 September 25, 2017 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