Seth Kershner v. New Bedford, City of - Office of The City Solicitor (SPR 20171541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebccca S. Murray Sirpervisor of Records November 7,2017 SPR1711541 Lisa A. Presby Legal Services Coordinator City of New Bedford - Office of the City Solicitor 133 William Street, Room 203 New Bedford, MA 02740-6 163 Dear Ms. Presby: I have received the petition of Seth Kershner appealing the response of the City of New Bedford Office of the City Solicitor (City) to a request for public records. G. L. c. 66, 5 10A; see -also 9 50 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, 5 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, 5 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. Flatlev, 419 Mass. 507, 51 1 (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. SPR171647 Determination of the Supervisor of Records (May 23,2017); SPRl71935 Determination of the Supervisor of Records (July 24,2017); SPR1711071 Determination of the Supervisor of Records (September 25,2017). I closed SPR1711071 by ordering the City to provide Mr. Kershner with a response to the One Ashburton Place, Room 1719, Boston, Massach.u setts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us1pre pre@sec.state.ma.us

Lisa A. Presby Page 2 November 7,2017 request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a response dated September 1,2017, the City provided Mr. ICershner 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 5 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. I closed SPR1711270 finding the City had met its burden in responding to incident report "29 March 2013" and ordering the City to provide Mr. Kershner with a supplemental response to incident report "16 March 2017." In a response dated October 23.2017, the City provided Mr. Kershner with a response explaining the City's redactions in incident report "16 March 2017" werc made pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, 5 7 (26)(n). Further, the City indicates Mr. Kershner's appeal regarding "16 March 2017" was untimely and declines to provide Mr. Kershner with the unredacted repoi-t. Mr. ICershner appealed and SPR 17!1541 was opened as a result. Current appeal In his October 30, 2017 appeal petition, Mr. Kershner indicates the provided "report ["I6 March 2017"] is nearly incomprehensible, as the the [sic] entire narrative portion of the report is redacted." Fui-ther, his petition indicates, "[tjhe [City] has not adequately explained how it can invoke the threat of terrorism-as it has done in the past-to avoid releasing information on non- terrorism-related incidents." Mr. Icershner requests "that the City of New Bedford release a version of the 16 March 2017 report with redactions only for private personal information." Exemption (in) 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.

Lisa A. Presby Page 3 November 7,2017 Exemation (.n ) allows for the withholdinc-r 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, a the "inquiry is whether, and to what degree, the record is one terrorist 'would find useful to maximize damage.'" People for the Ethical Treatment of Animals (PETA) v. Dea't of A~ric. Res., 477 Mass. 280,289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the a. proposition that disclosure of the record is 'likely to jeopardize public safety.'" at 289-90. PETA The 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 a. determination given the context of the particular case." . Incident Report: 16 March 201 7 In its October 23rdr esponse, the City states that the report provided to Mr. Kershner is redacted pursuant to Exemption (n) 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 the claimed exemption of the Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, 5 IO(b)(iv)(emphasis added); see also m, Globe Newspa~erC o, v. Police Comm'r, 419 Mass. 852, 857 (1995); 419 Mass. at 51 1. 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 has not satisfied 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 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. Icershner. 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 wthin 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

Lisa A. Presby Page 4 November 7,2017 office at pre@,sec.state.ma.us. Mr. Kershner may appeal the substantive nature of the City's See response within ninety days. 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 camplete 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 a~rthorityto require the submission of records for an in camera inspection emanates from the Code of Massachusetts 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 can?era 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. 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