David Kokindo v. Hinsdale, Town of - Office of the Board of Selectmen (SPR 20180483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 26, 2018 SPRlS/483 Katherine Ward Administrative Assistant Hinsdale Select Board 3 9 South Street Hinsdale, MA 01235 Dear Ms. Ward: I have received the petition of David Kokindo appealing the response of the Town of L Hinsdale Board of Selectmen (Town) to a request for public records. G. c. 66, § lOA; see also 950 CM.R. 32.08(1). Specifically, Mr. Kokindo requested: 1. All detail work done for all officers/Chief for the Town of Hinsdale; 2. Weekly time sheets submitted for all officers/Chief for the Town of Hinsdale 3. The pay warrant for the fireman's stipends that the selectmen signed; 4. The time sheets for the animal control/dog officer 5. Time sheets for Dalton Noel on sewer/water; and 6. Any incident reports for accidents or damage done to town vehicles. 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 inBlude- all documentary materials-or data, regardless of physic-al 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. 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

Katherine Warden SPR18/483 Page 2 April 26, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's April lh response In its April 4, 2018 response, the Town provided a fee estimate, and indicated its intention to redact records responsive to Part 2 of Mr. Kokindo's request. Unsatisfied with this response, Mr. Kokindo petitioned this office, and this appeal was opened as a result. It is my understanding that a Public Records Division staff member contacted you regarding this matter, and you provided a supplemental response. The Town's April 23rd response In its supplemental response dated April 23, 2018, the Town indicates that it will be redacting police time sheets responsive to Part 2 of Mr. Kokindo' s request pursuant to Exemption (b) and Exemption (n) of the Public Records Law. 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. Under its Exemption (b) claim, the Town indicates that it plans to redact "shift patterns and staffing levels" from police time sheets, claiming that this information is "related solely to internal personnel practices." The Town further claims that if this information were disclosed, "individuals would be apprised as to which shifts are staffed at lower levels, potentially making the Town vulnerable to criminal activity during those times." The Town also indicates that it will provide "unredacted information on the time sheets that does not raise such concerns."

Katherine Warden SPR18/483 Page 3 April 26, 2018 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 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 of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[bJ 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. Under its Exemption (n) claim, the Town indicates that "time sheets for the Town's police officers contain information relating to security measures, emergency preparedness, and the secµrity or safetyof persons or facilities." Specifically, the tim~ sheets contain information on shift patterns and staffing levels. The Town further claims that if this information became public knowledge, "individuals would be apprised as to which shifts are staffed at lower levels, making the Town vulnerable to criminal activity during those times. This could compromise the safety of police officers, Town officials and employees, and the general public." The Town also contends that "[i]f the shift information is released, members of the public will know exactly when a particular officer is working at the police department, such that a member of the public will potentially be able to locate an officer in the event that he/she desires to confront the officer or otherwise cause disruption or harm to the officer in response to a prior incident in which the officer was involved."

Katherine Warden SPR18/483 Page 4 April 26, 2018 In camera inspection In order to analyze the legal basis of the Town's position, it is the finding of this office that an in camera review of an unredacted copy of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Town. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to 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 camera 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. Order Accordingly, the Town is ordered to provide this office with an unredacted copy of the responsive records without delay. The Town 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 re;view, 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, ~.~ Supervisor of Records cc: David Kokindo Brian M. Maser, Esq.