Seth Kershner v. Quincy, City of - Police Department (SPR 20171319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 26, 201 7 SPR17/1319 Lieutenant Terence McDonnell Inspector of Divisions Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lieutenant McDonnell: I have received the petition of Seth Kershner appealing the response of the Quincy 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 several categories of records related to the Department's SWAT team. In a response dated September 14, 2017 the Department provided certain records and withheld others under Exemptions (b) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(b), (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 custodian to demonstrate 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). 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. 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

Lieutenant McDonnell SPR17/1319 Page 2 September 26, 2017 Current appeal In his appeal petition, Mr. Kershner indicates his appeal pertains "solely to the Department's refusal to release documents responsive to request category # 1 (after-action reviews, incident reports, etc.)." He explains he is "asking the Department to release the aforementioned categories of records -making sensible redactions of personal names and other identifying information-from January 1, 2014 until the present." The Department cited Exemption (b) in support of its position to withhold these 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 the Department's September 8th response you indicate the Department "intends to withhold related 'incident reports, after action reviews or other written reports' and 'any post deployment documentation' due to the applicability" of Exemption (b). You assert that the responsive records "describe tactical operations and security measures which are designed to insure the safety and security of the general public and responding officers." Y oil also explain that "[p] roviding details of such operations would indicate the range of emergency response tactics available, as well as, potential limits on the ability to respond to such incidents." Instead, the Department provided a chart containing information regarding nine incidents that have occurred since 2014. However, the Department has not met its burden to show how the "proper performance of necessary government functions requires" the withholding of responsive records in their entirety under Exemption (b). 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). Although the Department provided a chart with certain information, the Department has not met its burden to withhold the actual responsive records in their entirety.

Lieutenant McDonnell SPR17/1319 Page 3 September 26, 2017 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