Alexandra Perloff-Giles v. Everett, City of - Police Department (SPR 20192202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 14, 2019 SPR19/2202 Captain Paul Hamilton .City of Everett-Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition of Alexandra Perloff-Giles, Esq. of The Nevv York Times Company appealing the response of the Everett Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on August 1, 2019, Attorney Perloff-Giles requested "ShotSpotter and gunfire data from the City of Everett." The Department responded on August 6, 2019, denying access to responsive records pursuant to Exemptions (g) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(g), (n). Unsatisfied with the Department's response Attorney Perloff-Giles petitioned this office and this appeal, SPRl 9/2202, was opened as a result. Petitions to the Supervisor of Records Attorney Perloff-Giles is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses .. ;" 950 C.M.R. 32.08(l)(g). 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. 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

Captain Paul Hamilton SPR19/2202 Page 2 November 14, 2019 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. The Department's August 6th response In its August 6, 2019 response, the Department indicates that it possesses responsive records, specifically," ... a map showing coverage and areas that lack coverage[.]" However, the Department asse1is that the record is exempt from disclosure under Exemptions (g) and (n). Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition of receiving a goverm11ental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not provided by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the Department claims that this exemption" ... provides [it] a basis for withholding, 'trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit."'

Captain Paul Hamilton SPR19/2202 Page 3 November 14, 2019 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, 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." 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 tojeopardize public safety."' Id. at 289-90. The PETA decision futiher provides that "[b Jecause 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." PETA, at 289-90. 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." Id., at 290. Under Exemption (n), the Department also states that this exemption" ... provides [it] a basis for withholding, '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 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety."'

Captain Paul Hamilton SPR19/2202 Page 4 November 14, 2019 Burden of specificity; duty to segregate Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § IO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Depaiiment's response did.not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites the languages of Exemptions (g) and (n) without any further explanation as to the exemptions' applicability to the requested record. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested record. As a result, I find the Department has not satisfied its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested record in order to comply with the Public Records Law and its Access Regulations. Additionally, the Depaiiment did not meet its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable pmiion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Additional records In her appeal petition, Attorney Perloff-Giles states "[t]he Everett Police Department's response suggested that it had located 'a map showing coverage area and areas that lack coverage.' To be clear, the requested materials are broader than just the map described: The Times seeks data relating to all 'shots' recorded by the system - including, but not limited to, date, time, location, and type ofrepmi (e.g., single shot, multiple shots, firecracker, etc.}-since ShotSpotter was introduced." In light of the above, I find the Department must confirm whether it possesses additional records responsive to this request. The duty to comply with requests for records extends to those records that exist and are iri the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). If the records are within the Depaiiment's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § lO(b)(iv) (custodian has the burden of establishing the applicability of an exemption). Conclusion Accordingly, the Department is ordered to provide Attorney Perloff-Giles with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Captain Paul Hamilton SPR19/2202 Page 5 November 14, 2019 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. · Sincerely, ~~ Rebecca S. MmTay Supervisor of Records cc: Alexandra Perloff-Giles