Michael Dreslinski v. Essex County Sheriff's Department (SPR 20171489)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S."Murray Supervisor ofR ecords October 30, 2017 SPR17/1489 Scott B. Sullivan, Esq. Essex County Sheriffs Department 20 Manning Avenue, P.O. Box 807 Middleton, MA 01949-2807 Dear Attorney Sullivan: I have received the petition of Michael Dreslinski appealing the response of the Essex County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dreslin,ski requested the following: "(1) All records related to the most recent purchase of a new 'cruiser' type police vehicle and prisoner transport type vehicle, including but not limited to all communications to/from vehicle supplier(s), aftermarket outfitter(s); requested/received price quotes, bids; order forms; invoices; specifications/instructions (such as added vehicle accessories, painting/lettering design, etc.); (2) Safety recall and/or manufacturer defect information received regarding any vehicle currently operated by the Essex County Sheriffs Office." In a response dated October 3, 2016, in regards to the first request, the Department provided certain records but also cited Exemption (n) of the Public Records Law. G. L. c. 4, § 7 (26)(n). In regards to the second request, the Department indicated it does not possess responsive records. Please note, the petition filed by Mr. Dreslinski indicates "[t]his petition appeals the Department's withholding of responsive records under G.L. c. 4, §7(26)(n)." Accordingly, this office's response is limited to the Department's Exemption (n) claim. 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 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

Scott B. Sullivan, Esq. SPR17/1489 Page 2 October 30, 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. The RAO must provide records within the custodian's possession, custody or control of the agency or municipality that the RAO serves, provided that the request reasonably describes the desired information. G. L. c. 66, § 10(a). RAOs are expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. 950 C.M.R. 32.04(5). Further, RAOs are required to assist persons seeking public records to identify the records sought and must, when appropriate, suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably. G. L. c. 66, § 1O (b ); 950 C.M.R. 32.04(5)(b ); 950 C.M.R. 32.06(2)(g). Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Dreslinski's purpose in making the request has no bearing on the public status of any existing responsive records. Exemption (n) 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.

Scott B. Sullivan, Esq. SPR17/1489 Page 3 October 30, 2017 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 ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to 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 CPETA) 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. Existence ofr esponsive records; specificity The Department indicates it "objects to [Mr. Dreslinski's] request on the grounds that it is vague, ambiguous and fails to reasonably describe the records sought in order for the Department to locate records in a prompt manner." The Department is advised that if they are unable to identify the records sought in Mr. Dreslinski's request, they are under a duty to assist him in identifying the records. See 950 C.M.R. 32.04(5). Additionally, the Department indicates its enclosure of"copies of price quotes with respect to the Department's most recent purchase of a transportation van and cruiser type vehicle." It further indicates "it is the Department's position that records with respect to aftermarket outfitting and special instructions, etc. of the vehicles in question are specifically exempt from disclosure pursuant to M.G.L. c. 4, S. 7(26)(n)." Based on the Department's response, it is unclear what responsive records the Department possesses, nor is it clear which records the Department is withholding. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, it is unclear how Exemption (n) would apply to allow withholding of records in their entirety. Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption).

Scott B. Sullivan, Esq. SPR17!1489 Page 4 October 30, 2017 Conclusion I understand a Public Records Division staff member attempted to contact you about this matter. Accordingly, the Department is ordered to provide Mr. Dreslinski 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. Dreslinski may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski