Matthew Szafranski v. Springfield, City of - Police Department (SPR 20200897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2020 SPR20/0897 Andrea L. Stone Public Records Coordinator Springfield Police Department 130 Pearl Street Springfield, MA 01105 Dear Ms. Stone: I have received the petition of Matt Szafranski appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 16, 2020, Mr. Szafranski requested, “[a]ny emails sent and/or received by [seven named] individuals on accompanying email accounts, and/or any email account the city knows said individuals used to conduct city business, and contains the terms ‘national guard’ and/or ‘national guardsman/guardsmen.’ The dates this applies to run from March 23, 2020 to April 10, 2020.” 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). 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). The City’s June 5th response The City responded on June 5, 2020 and provided “approximately ninety [90] pages of 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

Andrea L. Stone SPR20/0897 Page 2 June 17, 2020 email messages [with] attachments…” The City denied “the release of four [4] email messages because the City believes … the documents are exempt from disclosure … pursuant to M.G.L. c. 4 § 7(26)(n) … known as the Public Safety exemption.” Exemption (n) Exemption (n) permits the withholding of: 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. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. 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."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). 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 court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. Burden of specificity in responding and claiming exemptions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. 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

Andrea L. Stone SPR20/0897 Page 3 June 17, 2020 exemption or exemptions upon which the withholding is based ... "); -see also G-lobe New-spaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The City 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 records in order to comply with the Public Records Law and its Access Regulations. The City’s June 5th response did not contain the specificity required in a denial of access to public records. Further, the City did not state whether the records can be redacted. As a result, I find that the City did not satisfy its burden in responding to this records request. Order Accordingly, the City is ordered to provide Mr. Szafranski with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matt Szafranski