Seth Kershner v. Malden, City of - Office of the City Solicitor (SPR 20171416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 17, 2017 SPR17/1416 Kathryn M. Fallon, Esq. City of Malden Office of the City Solicitor 110 Pleasant Street, 3 rct Floor Malden, MA 02148 Dear Attorney Fallon: 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kershner requested seven (7) categories of records pertaining to the Department's Special Operations Unit (SOU). The Department initially denied Mr. Kershner's request by withholding all seven categories of records claiming Exemption (b) of the Public Records Law. The responsive records were the subject of a prior appeal. See SPR17/113 8 Determination of the Supervisor of Records (September 5, 2017). Subsequent to the opening of that appeal and the intervention from this office, the Department partially satisfied Mr. Kershner's request for records from categories three, six, and seven. However, the Department continues to withhold documents responsive to his categories one, two, four, and five ofthe request and claiming Exemption (n) along with Exemption (b) of the Public Records Law. In my September 5th determination, I advised the Department that it did not meet its burden in withholding the records in their entirety under Exemptions (b) and (n) of the Public Records Law. Despite havin~ provided some of the responsive records to Mr. Kershner, the Department's September 26t1 response states that the exemption claims remain intact and are not waived in any manner. Mr. Kershner petitioned this office which resulted in the opening ofthis current appeal. 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 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

Kathryn M. Fallon, Esq. SPR17/1416 Page2 October 17, 2017 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, § 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 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. Exemption (b) The Department informed Mr. Kershner that they would continue to withhold the responsive records pursuant to Exemption (b) of the Public Records Law. 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 September response, the Department indicates, that the requested records, pertaining to training and internal workings of the SOU, are considered internal personnel rules, procedures and practices of the SOU. Further, the Department explained disclosure would inhibit the SOU's ability to function and cause safety concerns to the SOU's personnel as well as affect the SOU's response to emergencies. In both of the Department's August and September responses, the explanations given were vague and lack 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 in the training records, incident reports, after-action reports, procedures, regulations, guidelines, and procurement/maintenance/deployment of SOU weapons and equipment would hinder the performance of its governmental functions. As a result, I find that the Department has yet to meet its burden of explaining how the records, in their entirety, are exempt from disclosure

Kathryn M. Fallon, Esq. SPR17/1416 Page 3 October 17, 2017 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). The Department must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § 10 (a ). Exemption (n) The Department also claims Exemption (n) of the Public Records Law to withhold responsive records. 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 ofthe 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. Based on the Department's August 23rd and September 26th response, both failed to show how the records; in their entirety, would pertain to the type of information contemplated in the first prong of the PETA analysis. Further, the Department has not provided 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 ofthe information is likely to jeopardize public safety or cyber security. For these reasons, the Department has not met its burden to justify withholding responsive records 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). The

Kathryn M. Fallon, Esq. SPR17/1416 Page 4 October 17, 2017 Department must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § 10(a). It is my understanding that an attorney in the Public Records Division contacted you regarding this appeal. Order Accordingly, the Department is ordered to provide Mr. Kershner with a copy of the records, redacting where appropriate under the exemptions, accompanied by a response to support the redactions, 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 Lieutenant 1o n Crannell