Seth Kershner v. Pittsfield, City of - Police Department (SPR 20181504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2018 SPRlS/1504 Kerri Striebel Records Clerk City of Pittsfield Police Department 3 9 Allen Street Pittsfield, MA O1 201 Dear Ms. Striebel: I have received the petition of Seth Kershner appealing the response of the City of Pittsfield 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, Mr. Kershner requested a copy of: 1. All after-action reviews, incidents reports, use of Taser reports and other documentation for each time a [Department] officer deployed their Taser; and 2. Any training manuals, PowerPoint slides, policy guidelines and other training materials - in form of media-made or received by your [D]epartment relating to use of Taser. Furthermore, Mr. Kershner requested of the Department, "[b]ecause this request involves a matter of public concern, and because I write as a member of the news media, I ask that you waive any copying costs pursuant to 950 C.M.R. 32.05(5). If you decide not to waive copying costs, I ask that you permit me to examine, at my election, the responsive documents before deciding which portions to photocopy." By email on August 22, 2018, the Department provided Mr. Kershner with a fee estimate of $189.80 for thirty (30) reports. The Department also cites the privacy clause of Exemption (c) and Exemption (n) to withhold and/or redact responsive records. After not receiving a fee waiver from the Department, Mr. Kershner petitioned the Supervisor of Records (Supervisor) stating, "[t]hrough this appeals process I am asking that you facilitate the full disclosure of the requested records with no charge." 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

Kerri Striebel SPR18/1504 Page 2 October 26, 2018 Fee Waiver Mr. Kershner should be advised, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. The records access officer may waive or reduce the amount of any fee upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). The Department's fee estimate On August 22, 2018, the Department provided a response to Mr. Kershner that included a fee estimate. As stated above, this office cannot mandate that the Department waive fees; however, this office may review a fee estimate to ensure that it is in compliance with the Public Records Law. The Department's estimate states: "[t]here are 30 incident reports associated with your request. There will be a fee for research, copying, postage and media payable by check prior to producing the record. One incident report costs $4.00. One accident report up to six pages costs $5.00. Estimated fees for longer reports are based on the number of pages plus the employee, records clerk, computer specialist, officer, investigator, or supervisor to produce the record. Billing in quarter hour increments for clerk's time is $17.45 hr., computer specialist $25.00 hr., investigator $30.00 hr., supervisor $40.00." The Department is advised that the flat rate fee for incident reports at $4.00 each, and $5.00 per accident report are not in compliance with the Public Records Law and its Regulations that went into effect on January 1, 2017. The special fees that police and fire departments were allowed to charge under the Public Records Law were stricken from G. L. c. 66, § 10. The Department must comply with the fees that municipalities are allowed to assess. See G. L. c. 66, § IO(d)(i)-(iv); see also 950 C.M.R. 32.07(2)(a)-(i). Municipal Fees A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § IO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i).

Kerri Striebel SPR18/1504 Page 3 October 26, 2018 It is unclear how much of the 4 hours of time assessed is for search time and for copying of the records, and whether the Department is charging any time for segregation and redaction. It is also unclear whether the Department has not charged Mr. Kershner for the first two (2) hours of time. Municipalities may not assess a fee for the first (two) 2 hours of employee time to search, compile, segregate, redact and copy the responsive records. See G. L. c. 66, § 10( d)(iii). , Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). It appears that the Department has assessed rates of $17.45 for a clerk and $25.00 for a computer specialist. However, the Department has also included the rates of $30.00 for an investigator and $40.00 for a supervisor. It is unclear how these hourly rates are in compliance with the requirement that municipalities charge no more than $25 per hour for the production of public records. See G. L. c. 66, § lO(d)(iii). The Department's response indicated that the records will be segregated and redacted under Exemptions (c) and (n). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4 ). In spealdng with a Public Records Division staff attorney, you explained that while the Department will segregate and redact exempt material from the records, the Department has not and will not assess a fee to do so. For the reasons discussed regarding the Department's fee estimate, I find the Department must revise its fee estimate consistent with this order and G. L. c. 66, § 10(d ). The Department's August 22, 2018 response - Exemptions The Department's August 2211 d response indicated that it would segregate and redact material contained in the after-action/incident reports under Exemptions (c) and (n) of the Public Records Law. The Department also indicated that the training manuals, PowerPoint slides, policy guidelines and other training materials will be withheld in their entirety under Exemption (n). 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

Kerri Striebel SPR18/1504 Page4 October 26, 2018 order to withhold a requested record. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Exemption (c) - privacy clause Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Second clause of (c) -privacy The Department indicates that the after-action/incident reports may contain "intimate details of a highly personal nature;" therefore, the Department intends to withhold or redact certain of the records under the second clause of Exemption (c). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Kerri Striebel SPR18/1504 Page 5 October 26, 2018 App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has.a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department's response did not demonstrate what information contained in the records are intimate details of a highly personal nature, and how the information, if disclosed would cause personal embarrassment to a person of normal sensibilities. Furthermore, the Department has not applied the balancing test required in applying Exemption ( c) , which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. See PET A, 4 77 Mass. at 291. Therefore, the Department has not met its burden in · claiming the privacy clause of Exemption (c) to withhold content in the responsive records. Exemption (n) The Department also indicated that content within the after-action reports/incident reports will be redacted under Exemption (n), and that the training manual, PowerPoint slides, policy guidelines and other training materials pertaining to the use of Tasers will be withheld in their entirety under 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. 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." PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the

Kerri Striebel SPR18/1504 Page 6 October 26, 2018 proposition that disclosure of the records is 'likely to jeopardize public safety."' Id. 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 determination given the context of the particular case." Id. PETA also provides that "[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating 'reasonable judgment' and vice versa." Id. at 290. The Department has merely re-stated the language in Exemption (n) to support this exemption claim in withholding portions of the after-action reports, and training and policy guidelines in their entirety. In light of the above, as well as the statutory language in Exemption (n), I find that the Department has not provided "sufficient factual heft" to conclude that a reasonable person would agree with the Department's decision to withhold certain portions of the records, or records in their entirety under Exemption (n) in this case. See PETA,_ at 289-90. Therefore, I find that the Department has not met its burden of demonstrating that the responsive training materials, PowerPoint slides, policy guidelines and other training materials relating to the Department's use ofTasers, in their entirety, may be withheld under Exemption (n). I also find that the Department has not met its burden of demonstrating that certain of the content in the after-action reports may be withheld under Exemption (n). Burden of specificity; duty to segregate The Department claimed Exemptions ( c) and (n) to withhold records and portions of records without providing the specificity to do so. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive portions of records, and records in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the responsive public records. G. L. c. 66, § 1O (a). Order Accordingly, the Department is ordered to provide Mr. Kershner with a revised fee estimate and a supplemental response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Kerri Striebel SPR18/1504 Page 7 October 26, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner