Seth Kershner v. Pittsfield, City of - Police Department (SPR 20191706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records September 5, 2019 SPR19/1706 Kerri Striebel City of Pittsfield - Police Depmiment 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Seth Kershner appealing the response of the Pittsfield Police Department (Depa1iment) 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 the following records: "1. All after-action reviews documenting each time the Special Response team deployed. 2. Monthly training reports or memos, summarizing the monthly training activities for members of the SRT team, from April 20, 2017 until the date of this request. (For a sample of similar records maintained by another agency, and released under the Public Records Law, see attached). 3. Any budget for the operation of the Berkshire County Special Response team; any records relating to funding sources and grants for the Berkshire County Special Response team from April 20, 2017 until the 'date of this request. 4. Any internal or external audits of Berkshire County Special Response/SWA T team performance or records of cost effectiveness from April 20, 2017 until the date of this request." Previous appeals; in camera inspection The requested records were the subject of previous appeals and subsequent in camera inspection. See SPRl 9/0134 Determination of the Supervisor of Records (February 4, 2019) and SPR19/0856 Determinations of the Supervisor of Records (May 13, 2019 and June 24, 2019). In my June 24th determination, I found that the Department had not met its burden to justify all the redactions made in the responsive records under Exemptions (a), (b), (c), (f), and U) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (c), (f), U). Accordingly, I ordered the Department to review the records, redact in a manner that is consistent with the order, the Public Records Law, and its Regulations. 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/l 706 Page 2 September 5, 2019 Following the June 24th determination, the Department provided a response on August 6, 2019, which included a modified version of the redacted records. Unsatisfied with the Department's response, Mr. Kershner petitioned this office and this appeal, SPR19/1706, 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, § 1O (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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Based on its response, although the Department provided a modified version of the redacted records, I find the Depaiiment did not meet its burden of specificity in explaining the scope of the redactions. Although the Depaiiment indicated in its August 61h response that" ... pictures identifying the subjects and name[,] address[,] and location have been redacted[,]" it remains unclear if the Department continues to claim all the exemptions it had claimed in its previous responses to redact portions of the records. Consequently, I find the Department must provide additional information explaining the exemptions being claimed to redact the records with respect to the modified version. Conclusion Accordingly, the Depaiiment is ordered to provide Mr. Kershner 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.

Kerri Striebel SPR19/1706 Page 3 September 5, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner