Seth Kershner v. Everett, City of - Police Department (SPR 20180869)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2018 SPR18/869 Capt. Paul Hamilton City of Everett -Police Department 45 Elm Street Everett, MA 02149 Dear Capt. Hamilton: I have received the petition of Seth Kershner appealing the response of the Everett Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). On May 29, 2018, Mr. Kershner requested records related to North Metro SWAT. Specifically, Mr. Kershner requested "[a]ll after action reviews documenting each time the SWAT team was deployed," and "[a]ny annual report for the SWAT team showing a breakdown of SWA T deployments by crime, requesting agency, or purpose for the raid ( e.g., to serve a warrant, arrest some, defuse a hostage crisis, etc.)" from January 1, 2012 to present. On June 11, 2018, the Department responded to his request by providing some responsive records and withholding others pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). 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 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

Capt. Paul Hamilton SPR18/869 Page 2 June 27, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (b) In its June 11th response, the Department indicates that it possesses "after action reports concerning the call outs ... however the record is exempt by statute, Exemption B-'Internal Rules and Practices of the Government Unit."' 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 governmental 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 is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). The Department explains that the "[a ]fter action reports are a debriefing on how the 'operation' was conducted with an emphasis on criticisms from team members and leadership so as to identify mistakes, if any, to prevent them from reoccurring as well as to enhance or improve their overall performance on the next call out." The Department further explains that "the techniques and tactics utilized by the SWA T team should be kept as confidential as possible so as to not compromise the safety of the police officers utilizing such techniques and tactics. It stands to reason that if this information were public knowledge and the suspect/s know what to

Capt. Paul Hamilton SPR18/869 Page 3 June 27, 2018 expect before it happens then it would greatly inhibit the effectiveness, overall successfulness and proper performance of the unit." In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. Based on the nature of the specific records Mr. Kershner is requesting and the Department's explanation as to how the after action reports relate solely to internal practice and policy and how disclosure would inhibit the Department's necessary functions, I find the Department has met its burden of demonstrating how those portions are exempt from disclosure. However it unclear why the records cannot be redacted and segregable portions provided to Mr. Kershner. Specifically, although the requested records may contain internal practice and policy information, it unclear why redaction of those portions would not prevent disclosure of information that inhibit.the Department's necessary functions. As a result, the Department did not meet its burden of explaining with specificity how the report, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 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, § lO(a). Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records in their entirety, the requested records may not be entirely withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Kershner with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner