Kade Crockford v. Springfield, City of - Office of the City Clerk (SPR 20191221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 2, 2019 SPR19/1221 Andrea Stone Office of the City Clerk City of Springfield 3 6 Comi Street Springfield, MA O1 103 Dear Ms. Stone: I have received the petition of Kade Crockford of the American Civil Liberties Union appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 7, 2019, Ms. Crockford requested the following records: "1. Communications between any representative of the Springfield Police Department and any representative of any vendor offering any facial-recognition product or service. 2. Internal communications between representatives or employees of the Springfield Police Depaiiment relating to any facial-recognition product or service. 3. Documents relating to the Springfield Police Depaiiment's purchasing or use of facial recognition, including but not limited to: purchase orders, RFPs, licensing agreements, invoices, and contracts (including non-disclosure agreements) related to any facial-recognition product or service. 4. Materials relating to how any facial-recognition product or service functions (or functions improperly), including e-mails, handouts, PowerPoint presentations, advertisements, or specification documents. 5. Manuals, policies, procedures, and practices governing the use or monitoring of a facial-recognition product or service or related information or databases. This request includes, but is not limited to: a. Procedures for using, deleting, or retaining photos of subjects to be identified; b. Materials identifying any sources of such photos, such as mobile devices, body cameras, surveillance videos, identification photos, or a1Test photos; c. Policies or procedures relating to the legal standard, if any, ( e.g., probable cause, court order, relevance, consent) that is required before using any facial recognition product or service. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Andrea Stone SPR19/1221 Page 2 July 2, 2019 d. Procedures the agency follows after a positive match, such as requiring independent or in-person verification; e. Permitted uses of the information created from a positive match. 6. Training materials related to any facial-recognition product or service by employees of the Springfield Police Department. 7. Records relating to any mobile application related to any facial-recognition product or service. 8. Records relating to any public process or debate about any facial-recognition product or service, including meeting agendas or minutes, public notice, analyses, or communications between the Springfield Police Department and elected leaders or county officials." Previous appeal The requested records were the subject of a previous appeal. See SPR19/713 Determination of the Supervisor of Records (April 18, 2019). In my April 18th determination, I ordered the City to provide a response to Ms. Crockford made in accordance with the Public Records Law, its Access Regulations and the order. Following the April 18th determination, the City provided a response dated May 9, 2019, providing portions of the responsive records and indicating that it does not possess certain responsive records. Unsatisfied with the City's response, Ms. Crockford petitioned this office and this appeal, SPRl 9/1221, was opened as a result. Tlte 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Andrea Stone SPR19/1221 Page 3 July 2, 2019 The City's May 91 response " Request I In its May 9, 2019 response, with respect to request 1, the City states that it provided 3 86 pages of email messages including attachments which reference Amazon Rekognition, Microsoft Face API, and/or NEC NeoFace ...." Request 2 With respect to request 2, the City claims that its police department's Information and Technology department "have submitted 2,700 email messages which reference the search terms 'facial recognition program/software/technology"' to the City. The City requested "an extension of ten ... business days until May 23, 2019 to review these records to determine which if any may be responsive to this request." Requests 3 and 4 In response to these requests, the City indicates that personnel from its police depaiiment " ... have advised that there are no records that are responsive to this request because SPD does not use any facial recognition programs." Requests 5, 6, 7, and 8 With respect to these requests, the City states that "[t]he Springfield Police Depaiiment does not have any records that are responsive to th[ ese] request[ s] because SPD does not use any facial recognition programs." Current appeal In her appeal petition, Ms. Crockford claims that the City's" ... answer to points 4 through 8 of [her] original request is umesponsive [and] does not address the concerns [she] raised in [her] appeal, i.e., the existence of the 'Real Time Analysis Center' and the use of BriefCam technology." Further, in her appeal petition, Ms. Crockford included links to ce1iain articles that indicate that the City has a "Real-Time Analysis Center" and lists "Briefcam" as the primary software provider. In light of the issues raised in Ms. Crockford's appeal petition, it is unclear if the City possesses additional responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). The City must address these issues.

Andrea Stone SPR19/1221 Page 4 July 2, 2019 Conclusion Accordingly, the City is ordered to provide Ms. Crockford with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kade Crockford