Trevor Eckhart v. Northampton, City of - Police Department (SPR 20201513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1513 Jane Lawnicki Records Supervisor Town of Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Lawnicki: I have received the petition of Trevor Eckhart appealing the response of the Town of Northampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Eckhart requested: 1. A copy of any sUas Pat 207 [w]aivers obtained by the [Department], active during the flights on 6/6/2020; 7/4/2020, and 7/18/2020. More specifically part 107.31, 107.33 or 107.39; 2. A copy of the flight paths flown by the [Department] drones on 6/6/2020; 7/4/2020, and 7/25/2020. KMZ/KML files, etc.; 3. A copy of the Certificates of Waiver or Authorization to function as an aircraft operator obtained by the [Department]; and 4. Completed part 107 waivers. No responsive records In an August 27, 2020 response, the Department informed Mr. Eckhart that the Department does not have any records responsive to his requests Numbered 1 and 4. Mr. Eckhart should be advised, under the Public Records Law, a records custodian is not required to create a record in response to a public records request. 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); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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

Jane Lawnicki SPR20/1513 Page 2 September 14, 2020 Accompanying its August 27th response and pertaining to Mr. Eckhart’s Request Number 3, the Department provided Mr. Eckhart with a copy of the “Certificate of Waiver and the U.S. Department of Transportation, Federal Aviation Administrations’ Special Provisions.” Regarding Mr. Eckhart’s Request Number 2, the Department withheld the record(s) responsive to this request pursuant to Exemption (n) of the Public Records Law. Unsatisfied with the Department’s August 27th response, Mr. Eckhart petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Eckhart asserts, “[t]his is not a building, structure, utility, infrastructure or any type of internal document. This drone was flown over a group of citizens…while on public property.” It is also Mr. Eckhart’s contention, “I have reason to believe that federal aviation law[s]….were broken during these flights.” 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). 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).

Jane Lawnicki SPR20/1513 Page 3 September 14, 2020 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 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, 477 Mass. at 290. The Department’s August 27th response regarding its Exemption (n) claim to withhold the flight path of the drone(s) asserts, “[i]n this case, the dissemination of these particular flight paths could jeopardize the safety of the officers by disclosing their location. Disclosure would certainly attract people wishing to interfere with the officers’ jobs and cause undue chaos.” Based on the Department’s August 27th response, the Department has not specifically demonstrated that the record(s) in their possession responsive to Mr. Eckhart’s request is a record or are records that resemble(s) the records listed as examples in the statute. Nor has the Department provided any factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.” See PETA, 477 Mass. at 289-90. I find that the Department has not provided sufficient factual heft for the Supervisor or the reviewing court to conclude that a reasonable person would agree with the Department’s determination given the context of the particular case. See Id. at 290. Burden of specificity 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 under Exemption (n). 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).

Jane Lawnicki SPR20/1513 Page 4 September 14, 2020 In addition, the Department did not identify the records, categories of records or portions of records in its possession that is responsive to Mr. Eckhart’s request Number 2, and that it intends to withhold from disclosure under Exemption (n). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records or categories of records. Therefore, the Department must identify what records it has in its possession that the Department withheld. Conclusion Accordingly, the Department is ordered to provide Mr. Eckhart with a response to the request, 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 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: Trevor Eckhart