Michael Dreslinski v. Clinton, Town of - Police Department (SPR 20171430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 17, 2017 SPR17/1430 Robert E. Champagne Records Access Officer Town of Clinton-Police Department 176 Chestnut Street Clinton, MA 01510 Dear Mr. Champagne: I have received the petition of Michael Dreslinski appealing the response of the Town of Clinton 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. Dreslinski requested a copy of all records pertaining to the Department's most recent purchase of a "cruiser type police vehicle." On September 25th, the Department provided Mr. Dreslinski with four pages of responsive records. However, the Department also indicated that it was withholding records responsive to the request pursuant to Exemption (n) of the Public Records Law. It is unclear what those particular records were that have been withheld by the Department. Objecting to the partial denial of his request for public records, Mr. Dreslinski petitioned this office. The Department is reminded that in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). Mr. Dreslinski states that he is seeking "[a]dditional responsive records created or received by the Department relating to the cruiser purchase that have not yet been provided to [him], including but not limited to procurements, authorizations, communications to/from vendors, ordering information (added equipment, modifications, painting/lettering, logos & graphic design), the Bid List, etc." 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, § 1O A( 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

Robert E. Champagne SPR17/1430 Page 2 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, § 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. Exemption (n) The Department has withheld some of the records responsive to Mr. Dreslinski's request pursuant to 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 ofthe 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 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.

Robert E. Champagne SPR17/1430 Page 3 October 17, 2017 In the Department's September 29th response, it indicated that if the withheld records are released to the public, suspects could attempt to gain access to weapons and information. As a result, the Department withheld the records in their entirety underExemption (n). However, it is unclear what records have been withheld, and how the entirety of those records responsive to Mr. Dreslinski' s request 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 records responsive to the request, in their entirety, under Exemption (n). 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, § 10(a). Conclusion It is my understanding that a Public Records Division staff attorney contacted you about this matter. Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Dreslinski with a supplemental response to the request, 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: Michael Dreslinski