Seth Kershner v. Massachusetts State Police (SPR 20192108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2019 SPR19/2108 Siobhan E. Kelly, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA O1 702 Dear Attorney Kelly: I have received the petition of Seth Kershner appealing the response of the Depaiiment of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2019, Mr. Kershner requested: 1. All after-action reviews documenting each time the Special Response team deployed between January 1, 2019 and June 30, 2019; 2. Annual performance data for the Division of Field Services for 2017 and 2018; and 3. Annual reports for the STOP [T]eam, completed by the commander of that unit for 2017 and 2018. The Depaiiment provided an October 2, 2019 response accompanied by records responsive to a request for the Division of Field Service's Annual Performance Data for 2017 and 2018, as well as the STOP Team's Performance Data. Redactions were made by the Department to the STOP Team's Performance Data under Exemption (n) of the Public Records Law. Your October 2nd response also indicates that the Department is currently working with the STOP Team to gather all records responsive to Mr. Kershner's Request Number 3, the after action repmis. Mr. Kershner petitioned the Supervisor of Records (Supervisor) pertaining to the redactions of the number of personnel deployed to a given call and the summary of those calls under Exemption (n). In his petition, Mr. Kershner states, "[s]ummaries would indicate the reasons for the call, e.g., whether the STOP [T]eam was there to execute a search warrant for illegal drugs." As a result of Mr. Kershner's petition, this appeal was opened. 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

Siobhan E. Kelly, Esq. SPR19/2108 Page 2 October 28, 2019 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) (written response must "identify any records, categories of records or po1iions 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 (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, transpmiation, 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)(11). 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 proposition that disclosure of the record 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 comi to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id.

Siobhan E. Kelly, Esq. SPR19/2108 Page 3 October 28, 2019 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."' PETA at 290. In its October 2nd response, the Department asseiis, "[d]isclosing the number of Troopers deployed on any given call could impact the safety and security of those officers as well as the individuals they offer assistance to. By disclosing the number of Troopers deployed with the STOP Team, an individual would be able to determine the emergency preparedness of the Depmiment at any given occasion ... [g]iven the serious nature of the events in which the STOP team is deployed, it would pose both a security risk to those members who are deployed and to the individuals who the team is assisting if the number of personnel deployed was disclosed. This would give an individual with criminal intent the opportunity to anticipate and plan for a specific type of STOP Team response." In addition, the Department will not disclose the "summary" or reason for the STOP team's mission per deployment. Mr. Kershner suggests that the Department should consider releasing the spreadsheet of STOP team call-outs by only redacting the names of officers and any suspects involved in the deployments. In camera inspection In order to facilitate a determination as to the public nature of the redacted portions of the spreadsheet, it is necessary to inspect an un-redacted copy of the records in question. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the record to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the subniission 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 ce1iainly affect our credibility within the legal community.

Siobhan E. Kelly, Esq. SPR19/2108 Page 4 October 28, 2019 Conclusion Accordingly, the Department is ordered to provide this office with an un-redacted copy of the record(s) for in camera inspection. The Department may provide this office with further information. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Seth Kershner