Arthur G. Grenier v. Lowell, City of - Police Department (SPR 20181528)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 30, 2018 SPRlS/1528 Jackie Cook City of Lowell - Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Arthur Grenier appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on October 4, 2018, Mr. Grenier requested responsive documents related to a report described on page 56 of the Department's Track Star AVLS System user manual dated 4/5/18, with the time frame 2145 hours to 2245hours. Mr. Grenier indicated that he is "[s]eeking speed, heading, gps fix, location, distance, idling, movement summary, speed violation report, stop summary." The Department provided a response on October 16, 2018, denying access to responsive records pursuant to Exemptions (b), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(b), (f), (n). Unsatisfied with the Department's response, Mr. Grenier petitioned this office and this appeal, SPRl 8/1528, 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). 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

Jackie Cook SPR18/1528 Page2 October 30, 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. The Department's October 16th response In its October 16, 2018 response, the Department cites the following exemptions to withhold responsive records from disclosure. 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 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, ifreleased, 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). Under its Exemption (b) claim, the Department indicates that "TrackStar A VLS is an automatic vehicle location system that the [Department] uses to monitor and allocate its police officers across the city in real time and is thus part of the city's security measures and security infrastructure." The Department explains that records from 'the system relate solely to the Department's internal personnel practices" ... and their disclosure would not be in the public interest because it would allow [Mr. Grenier] to avoid police patrols or identify patterns or routes

Jackie Cook SPR18/1528 Page 3 October 30, 2018 of patrols, or identify the location of officers performing police activities such as investigations, covert or otherwise." The Department further claims that "[r]eports of officer movements and activity would reveal patrol routes routines and systemic allocation of police resources and other police techniques necessarily withheld from disclosure in order to allow the police personnel to function effectively." The Department contends that "[b] ecause these records relate solely to the internal personnel practices of the [Department] the disclosure of which would tend to compromise legitimate government interest (here, the security interests of the city), [E]xemption B applies to these records." Although the Department claims that the records relate solely to its internal personnel practices and that disclosure "would tend to compromise legitimate government interest[,] [thus,] the security interests of the City," it is unclear what is depicted in the requested data. It is also uncertain how the release of the records would hinder the "proper performance of necessary governmental functions" when, according to Mr. Grenier, "[t]he [Department] has previously released trackStar data to [him] on multiple occasions . . . without exempting any of it." Additionally, it is unclear whether any portions of the records may be released that do not depict "internal personnel rules and practices" that impact the proper performance of necessary government functions. The Department must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be · prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comrn'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department claims that "[t]he A VLS information is compiled by law enforcement out of the public view and the disclosure of these materials would

Jackie Cook SPR18/1528 Page4 October 30, 2018 likely prejudice the possibility of effective law enforcement by identifying the location of officers involved in police activities such as investigating crimes that the disclosure would not be in the public interest. Police officers are assigned to certain areas in order to, among other things, investigate crimes." The Department further asserts that the date and time frame of this request is for information pertinent to an ongoing investigation and that disclosure of the records would compromise the investigation "because it would tend to show the allocation of police resources in the area and or reveal police techniques with regard to a criminal investigation." The Department claims that because the requested information is" ... pertinent to an ongoing investigation ... disclosure ... would compromise the investigation." However, I find the Department has not demonstrated how disclosure of the records would compromise the ongoing investigation, particularly, in light of Mr. Grenier's claim that "the [Department] ha[s] closed their investigation on this matter. All their reports are in and the Criminal Complaint has been filed." Further, I find the Department has not demonstrated how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). It is additionally uncertain how the records cannot be redacted to prevent the disclosure of "police techniques with regard to criminal investigation." See id. (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, § 10( a). 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. 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).

Jackie Cook SPR18/1528 Page 5 October 30, 2018 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. The Department claims that the requested record falls within Exemption (n) because, "disclosure to AVLS information to this requestor would likely jeopardizes [sic] the safety of persons (here, the individually named police officer, and the public at large)." The Department posits that the information "constitutes records that squarely fall under the category of records related to emergency preparedness, and 'any other records relating to the security or safety of persons or buildings ... transportation' as exempt records." The Department explains that the " ... information relates directly to the allocation of emergency personnel whose roles include ensuring the safety and security of persons, buildings, and infrastructure including the safety of the City's roadways." The Department contends that "[t]his information in the wrong hands would jeopardize the safety of officers and the public because, it would allow the requestor to anticipate when and where certain individual police officers are expected to be located (o r not located) and what they may be expected to be doing based on their past performance." The Department further states that "[a]nalysis of this information may reveal vulnerabilities to the allocation of the City's security and police resources by geographic area and allow the requestor to either avoid contact with the police patrols or seek out and attack a particular individual." The Department also asserts that in its judgment, Mr. Grenier, being "a former Lowell Police Officer, is not a suitable person to obtain this information, as disclosure would jeopardize public safety." I find the Department has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the record is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Id. at 290-91. Neither has the Department demonstrated that disclosure of the requested one hour of data on a specific day for a particular officer," ... would reveal vulnerabilities to the.allocation of the City's security and police resources by geographic area and allow the requestor to either avoid contact with the police patrols or seek out and attack a particular individual." Therefore, the Department has not met its burden to show how Exemption (n) applies to withhold the requested records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Grenier with a response to the request provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this

Jackie Cook SPR18/1528 Page 6 October 30, 2018 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur Grenier