Joshua Dankoff v. Taunton, City of - Police Department (SPR 20201130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2020 SPR20/1130 Edward Walsh Chief of Police Taunton Police Department 23 Summer Street Taunton, MA 02780 Dear Chief Walsh: I have received the petition of Joshua Dankoff on behalf of Leon Smith, Esq., both of Citizens for Juvenile Justice, appealing the response of the Taunton Police Department (Department/TPD) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 9, 2020, Attorney Smith requested 15 categories of responsive records. This appeal pertains to the following categories of the request: Policy request 2. All current municipal and departmental policies related to Data sharing and cooperation agreements or memorandums of understanding with regional intelligence (such as the BRIC or the Massachusetts Commonwealth Fusion Center) 3. Data sharing and cooperation agreements or memorandums of understanding with school districts or individual schools in your jurisdiction. 6. School policing policies and, to the extent available on the municipal level: a. School discipline policies b. School policies regarding information sharing with law enforcement c. School policies related to undocumented children or children of undocumented parents. Data Request 3. For the time period September 1, 2014 to the date of this request, all FRPS documentation generated by FRPD that FRPD sent to, transmitted to, or otherwise made available to BRIC and/or the Massachusetts Commonwealth Fusion Center and/or ICE and/or any of their employees or agents. 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

Chief Edward Walsh SPR20/1130 Page 2 July 21, 2020 6. Stop and frisk and field interrogation data for all stop and frisk / field interrogation incidents from 2015 through when the search is conducted in 2020 is requested. To the extent possible, we are requesting raw data with personal identifying information and addresses redacted to protect privacy. However, we request that any redactions of personally identifiable information do not extend any further than necessary, and in particular, that demographic information such as gender, race, national origin, citizenship, language status, gender, and age (to the extent noted on documents) not be redacted. We also request location, time of incident, and outcome of field interrogation be included in the release. Even where not specifically indicated, this request includes documents that are in electronic format, such as emails. 7. Data regarding how many people have been identified by your department as gang affiliated, or gang involved. We request that any redactions of personally identifiable information do not extend any further than necessary, and in particular, that demographic information such as gender, race, national origin, citizenship, language status, gender, and age (to the extent noted on documents) not be redacted. The Department provided a response on April 18, 2020, including certain records and indicated it did not possess other records. Unsatisfied with the Department’s response, Mr. Dankoff petitioned this office and this appeal, SPR20/1130, 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, § 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); 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Chief Edward Walsh SPR20/1130 Page 3 July 21, 2020 The Department’s April 8th response Policy requests 3 and 6 In its April 18th response, for category 3, the Department indicated that it “. . . maintains no responsive records relative to this request. This document can be obtained from the Taunton School Department.” For category 6, the Department states it “maintains no responsive records relative to this request.” In his appeal petition, Mr. Dankoff states the following: TPD stated that it has ‘no responsive records relative to this request’ and asked that this document be obtained from the Taunton School Department. This is concerning because, G.L. c. 71 § 37P(b) requires that: “The superintendent and the chief of police shall enter into a written memorandum of understanding which shall . . . describe the following: (viii) specify the manner and division of responsibility for collecting and reporting the school-based arrests, citations and court referrals of students to the department of elementary and secondary education in accordance with regulations promulgated by the department, which shall collect and publish disaggregated data in a like manner as school discipline data made available for public review.” In light of the issues raised in Mr. Dankoff’s petition regarding the existence of responsive records, I find it is unclear why the Department does not possess records responsive to these portions of the request. The Department must clarify whether additional records exist. The duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Mr. Dankoff may wish to request the records from the School Department as indicated by the Department. Under the Public Records Law, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). Policy request 2 and data request 3 With respect to the above referenced requests, the Department responded that “[it] maintains no responsive records relative to th[ese] request[s].” In his petition, Mr. Dankoff, states “[the Department] responded only that it maintains no responsive records relative to this request. CFJJ finds this response unclear, as it is not known from the response whether, and the extent to which, TPD participates and cooperates with BRIC or the Commonwealth Fusion Center.” Mr. Dankoff is reminded that under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions.

Chief Edward Walsh SPR20/1130 Page 4 July 21, 2020 See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Department explains it does not possess any documents responsive to these requests and is not required to answer questions, I find that Mr. Dankoff’s appeal related to these requests are resolved. Data request 6 With respect to the above referenced request, the Department indicated that “[it] maintains no responsive records relative to this request.” In his appeal petition, Mr. Dankoff states: TPD stated that it had no responsive documents. Based on section “F” entitled Report Writing of TPD’s own policy (1.07) entitled “STOP AND FRISK AND THRESHOLD INQUIRIES”, “1. In every case of investigative detention (stop and frisk) the police officer involved shall document the circumstances in accordance with departmental procedures to include the identity of the person stopped and all important facts relative to the incident, even in cases where no weapon, contraband or other evidence of crime was discovered or where the person was released after being questioned.” Given that this policy is in place, CfJJ finds it difficult to believe that TPD has no responsive documents. Should such information be collected in an electronic database, per Attorney Gen. v. Dist. Attorney for Plymouth Dist., 484 Mass. 260, 141 N.E.3d 429 (2020), compiling information from a database is not tantamount to creating a new record that would otherwise be precluded under public records law. Specifically: “Where public records are in electronic form, a public records request that requires a government entity to search its electronic database to extract requested data does not mean that the extracted data constitute the creation of a new record, which would not be required, under the public records law.” Id. at 442 to 443. Thus, we request that TPD provide a response to data request 6. In light of the issues raised in Mr. Dankoff’s petition regarding the existence of responsive records per the Department’s policy, I find it is unclear why the Department does not possess records responsive to this portion of the request. The Department must clarify whether additional records exist. The duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Data request 7 With respect to the above referenced request, the Department indicated that “[it] maintains no responsive records relative to this request.”

Chief Edward Walsh SPR20/1130 Page 5 July 21, 2020 In his appeal petition, Mr. Dankoff states: Again, if such information exists, and if it is in an electronic database, per Attorney Gen. v. Dist. Attorney for Plymouth Dist., 484 Mass. 260, 141 N.E.3d 429 (2020), compiling information from a database is not tantamount to creating a new record that would otherwise be precluded under public records law. Specifically: “Where public records are in electronic form, a public records request that requires a government entity to search its electronic database to extract requested data does not mean that the extracted data constitute the creation of a new record, which would not be required, under the public records law.” Id. at 442 to 443. Thus, we request that TPD be required to release information from its database, or clearly state that no such list or database exists. In light of the above, the Department must clarify whether it possesses responsive records; specifically, if the requested data exists in a database. The duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Under the Public Records Law, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f). Conclusion Accordingly, the Department is ordered to provide Mr. Dankoff 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: Joshua Dankoff