Michael Dreslinski v. Chelmsford, Town of - Police Department (SPR 20181048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 1, 2018 SPRlS/1048 Deputy Chief Daniel J. Ahem Town of Chelmsford - Police Department 2 Olde North Road Chelmsford, MA O1 824 Dear Chief Ahem: I have received the petition of Michael Dreslinski appealing the response of the Chelmsford Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on April 1, 2018, Mr. Dreslinski requested copies of the following records: "(1) Price quote(s) and invoice(s) which identify charges (including any graphic design use or licensing fee) for painting and lettering applied to Department vehicle/unit #2, #4; (2) All specifications and instructions provided to applicable vendor(s) regarding painting and lettering applied to Department vehicle/unit #2, #4; (3) Record(s) identifying the font name(s) of all lettering (excluding lettering applied as part of any seal, emblem or insignia) applied to Department vehicle/unit #2, #4." The Department provided a response on May 18, 2018, which included portions of the responsive records. The Department denied access to records responsive to requests 2 and 3 pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). Unsatisfied with the Department's response, Mr. Dreslinski petitioned this office and this appeal, SPR18/1048, was opened as a result. 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). 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

Deputy Chief Daniel J. Ahem SPR18/1048 Page 2 August 1, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's May Jsth response In its May 18, 2018 response, the Department indicates that an invoice from its vendor, Paint Dezign, is being provided to satisfy request 1. The Department, however, indicates that records responsive to requests 2 and 3 are being withheld under Exemption (b) because the records" ... are solely internal personnel records related to the practices [the Department] employ[s] related to painting and lettering Police Vehicles. By releasing this information it would be highly likely that someone could replicate a Chelmsford Police Vehicle and pose as a Chelmsford Police Officer. This would easily hinder our ability to perform our necessary government function of Public Safety." Exemption (b) The Department claimed it withheld responsive records pursuant to Exemption (b) of the Public Records Law. 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 of Information 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).

Deputy Chief Daniel J. Ahem SPR18/1048 Page 3 August 1, 2018 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). 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. The Department has indicated that the records" ... are solely internal personnel records" which relate to the practices it employs regarding the painting and lettering of its vehicles. As such, the Department contends that if this information is released, it "would be highly likely that someone could replicate a Chelmsford Police Vehicle and pose as a Chelmsford Police Officer." This consequence, the Department claims" ... would easily hinder [its] ability to perform [its] necessary government function of Public Safety." Based on the Department's response, I find that the Department has met its burden of demonstrating that the records responsive to requests 2 and 3 are exempt from disclosure, in their entirety, under Exemption (b) of the Public Records Law. Conclusion Accordingly, whereas I find the Department has met its burden to withhold responsive records under Exemption (b ), I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Dreslinski