Andrew McIsaac v. Quincy, City of - Police Department (SPR 20180924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6,2018 SPR181924 Lieutenant Terence McDonnell Quincy Police Department 1 Sea Street Quincy, MA 02 169 Dear Lt. McDonnell: I have received the petition of Andrew McIsaac appealing the response of the Quincy Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 8,2018 Mr. McIsaac requested the following records: all policies/procedures of the Quincy Police Department, all reports concerning threshold inquiries (&/a Terry stops) initiated by Quincy Police officers on July 4,2017, and all Massachusetts Uniform Citations (including written warnings) issued by Quincy Police officers for bicycle infractions in 201 8 to date. In a response dated June 21,2018 the Department provided responsive policies and procedures; however, the Department redacted portions of one document under Exemption (n) of the Public Records Law. G. L. c. 4, 5 7(26)(n). Tlze 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian - 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

Lt. Terence McDonnell Page 2 July 6,20 18 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) 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. Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. 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 Aaric.Res., 477 Mass. 280,289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the Id. proposition that disclosure of the record is 'likely to jeopardize public safety.'" 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 Id. determination given the context of the particular case." In its June 21Str esponse the Department explains it redacted certain portions of General Order #14- 12 (SWAT Operations) under Exemption (n). The Department also asserts "[tlhese portions identify the equipment utilized by the SWAT Team, as well as, the location of where this equipment is stored. Providing such information would disclose available responses to certain emergency occurrences and could identify limits to the City's ability to address them."

Lt. Terence McDonnell Page 3 July 6,2018 You conclude by noting "[plublic safety would clearly be put at risk. For this reason, such information must be withheld under the law." In his appeal petition Mr. McIsaac indicates "General Order#: 14-1 2, except information concerning the storage of equipment, is subject to public disclosure. The public has an interest in knowing how our tax money is spent by government agencies. Please note the Department has already disclosed some information about their equipment (see pages 8 through 14 of General Order#: 91-40)." This appears to be the only issue raised in Mr. McIsaac's appeal. In camera review I find that an in camera review of the responsive record would facilitate a determination as to the applicability of exemption claims made by the Department, in particular it would shed light on the extent to which the redacted information falls within Exemption (n). See 950 C.M.R. 32.08(4). After I complete 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 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. Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (198 1) (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. The Department must provide this office an unredacted copy of the responsive record for in camera inspection without delay. The Department 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.

Lt. Terence McDonnell Page 4 July 6,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew McIsaac