Seth Kershner v. Pittsfield, City of - Police Department (SPR 20190856)

The Commonwealth of Massachusetts William Francis Galvin·, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2019 SPR19/856 Kerri Striebel City of Pittsfield - Police Department 39 Allen Street Pittsfield, MA 01201 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, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Kershner requested: "all after-action reviews documenting each time the Special Response team deployed." Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/134 Determination of the Supervisor of Records (Supervisor) (February 4, 2019). The Department provided a response on January 11, 2019, which included the responsive records in redacted format. The Department claims the redactions were made pursuant to Exemptions (a), (b), (c), (f) and (j) of the Public Records Law. Unsatisfied with the Department's response, Mr. Kershner petitioned this office and the prior appeal was opened. In my February 4th determination, I found that the Department did not meet its burden of specificity in redacting the "after-action" reviews under Exemptions (a), (b), (c), (f) and (j). I ordered the Department to explain what was redacted under each exemption claim, and to support its exemption claims by providing Mr. Kershner with a further response. In the alternative, I requested the Department provide this office with the redacted and un-redacted copies of the "after-action" records for in camera inspection. The Department opted not to send the records for in camera inspection. As a result, Mr. Kershner petitioned the Supervisor, and the current appeal was opened. In his petition, Mr. Kershner indicates, "[t]he Department cited a number of exemptions to justify the scale and scope of those redactions which were so extensive as to render the documents unintelligible." 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 SPR19/856 Page2 May 13, 2019 In camera inspection At this time and in order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact portions of the responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return them to the Department's custody and issue an issue an opinion on the public or exempt nature of the records. 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. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (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 may provide this office with an explanation of its position regarding the applicability of its exemption claims 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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner