Timothy R. Callinan v. Concord, Town of - Police Department (SPR 20200663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2020 SPR20/0663 Detective Sergeant Jeffrey Young Criminal Investigations Division Supervisor Town of Concord Police Department 219 Walden Street Concord, MA 01742 Dear Detective Sergeant Young: I have received the petition of Timothy R. Callinan, Esq. of Callinan Magner Law Group, LLP appealing the response of the Town of Concord Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 25, 2020, Attorney Callinan requested: “[a]ny complete Policies and Procedures for the [Department], including but not limited to the policies containing the following (Request Number 4): • Any [Department] Policy for the Support Services/Detective Division, Criminal Investigative Division, or any other [D]ivision assigned to investigate criminal activity; and • Any [Department] Policy containing the protocol when receiving criminal complaints from the public.” In an April 8, 2020 response, the Department denied Attorney Callinan’s request in its entirety under Exemptions (f) and (n) of the Public Records Law. As a result, Attorney Callinan petitioned the Supervisor of Records (Supervisor), and this appeal was opened pertaining to Attorney Callinan’s Request Number 4. 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, § 10A(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). 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

Detective Sergeant Jeffrey Young SPR20/0663 Page 2 April 27, 2020 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which material would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an on-going investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Although the Department claims in its April 8th response that the requested policies and procedures contain investigative techniques and/or methods, I find the Department did not demonstrate how disclosure of those records would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest as required to withhold records under Exemption (f). Particularly, the Department did not provide supporting information to demonstrate how disclosure would compromise or negatively impact the Department’s efforts to conduct investigations in the future. Therefore, the Department did not meet its burden under the Public Records Law in denying the records in their entirety under Exemption (f).

Detective Sergeant Jeffrey Young SPR20/0663 Page 3 April 27, 2020 Exemption (n) In its April 8th response, the Department also claims that the policies and procedures must be withheld, in their entirety, under Exemption (n) of the Public Records Law due to the Department’s emergency response methods. 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. Exemption (n) allows for the withholding of certain records which if released would jeopardize public 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 to jeopardize public safety.”’ Id. at 289-90. The PETA decision further provides that “[because 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 court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case.” Id. 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. Based on the Department’s April 8th response, the Department has not specifically demonstrated that the records in their entirety contain information that 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.

Detective Sergeant Jeffrey Young SPR20/0663 Page 4 April 27, 2020 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 “because 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 court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. 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. Based on the Department’s April 8th response, I find the Department has not demonstrated that the policies and procedures pertaining to investigating criminal activity and the protocol in proceeding when the Department receives a criminal complaint from the public, may be withheld in their entirety under Exemption (n). In addition, I find that the Department has not provided the “factual heft” necessary to withhold the responsive policies and procedures in their entirety under Exemption (n) of the Public Records Law. Burden of specificity; duty to segregate The Department denied Attorney Callinan’s request without providing the requisite support under the Public Records Law to withhold the responsive records, in their entirety, under Exemptions (f) and (n). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Attorney Callinan with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. 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.

Detective Sergeant Jeffrey Young SPR20/0663 Page 5 April 27, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy R. Callinan, Esq.