Neal McNamara v. Worcester, City of (SPR 20201278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1278 Mike Vigneux Records Access Officer City of Worcester 455 Main St. Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Neal McNamara appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2020, Mr. McNamara requested “[a]ll use-of-force reports filed by Worcester police officers between June 1 and June 22, 2020. Note: The ‘reports’ referred to in this request are those described in Section 10(A) of the police department’s operations manual . . .” The City provided an initial response on July 7, 2020, requesting additional 15 business days to review and produce responsive records. The City subsequently provided another response on July 29, 2020. The City withheld a record, but provided access to the remaining records in redacted form pursuant to Exemptions (a), (c), (f) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f), (n). Unsatisfied with the City’s July 29th response, Mr. McNamara petitioned this office and this appeal, SPR20/1278, was opened as a result. Based on Mr. McNamara’s appeal petition, it appears he only objects to the redaction of “. . . the names of weapons. . .” pursuant to Exemption (n). 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 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

Mike Vigneux SPR20/1278 Page 2 August 10, 2020 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. The City’s July 29th response In its July 29, 2020 response, the City indicates that it redacted portions of the records pursuant to Exemption (n). Citing the language of Exemption (n), the City states that the “. . . records contain information regarding tools, tactics, and methods used by law enforcement to respond to specific circumstances; the City has determined that in its reasonable judgment disclosure of portions of the requested record may jeopardize public safety and compromise the ability of law enforcement to effectively carry out necessary emergency response actions. . . .” 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. 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 “[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

Mike Vigneux SPR20/1278 Page 3 August 10, 2020 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. The City’s response did not contain the specificity required in a denial of access to public records. As such, I find the City has not met its burden to withhold portions of the records under Exemption (n). In particular, the City has not met its burden to show how “information regarding tools, tactics, and methods used by law enforcement to respond to specific circumstances[,]” sufficiently “resemble the records listed as examples in the statute” as contemplated in PETA Id. The examples provided in the statute are “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.” G. L. c. 4, § 7(26)(n). As such, it is unclear how the requested information is similar to these examples or one a terrorist would find useful to maximize damage. Further, although the City claims it “. . . has determined that in its reasonable judgment disclosure of portions of the requested record may jeopardize public safety and compromise the ability of law enforcement to effectively carry out necessary emergency response actions[,]” I find the City has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the information, is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. McNamara 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: Neal McNamara