Neal McNamara v. Worcester, City of - Law Department (SPR 20201876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2020 SPR20/1876 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 . . .” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1278 Determination of the Supervisor of Records (August 10, 2020). In my August 10th determination, I found that the City had not met its burden to redact portions of the records under Exemption (n) of the Public Records Law. Accordingly, I ordered the City to provide Mr. McNamara with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the City provided a response on September 4, 2020. Unsatisfied with the City’s response, Mr. McNamara petitioned this office and this appeal, SPR20/1876, 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). 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 SPR20/1876 Page 2 October 15, 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); 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. The City’s September 4th response In its September 4, 2020 response, the City explains that “. . . providing un-redacted reports of the specific crowd control tactics and implements used, including details of their range, deployment capabilities, and relative effectiveness fall within the intent of the statute. The [City] contends that the specific tools used, tactics, and implementation fall within the ‘procedures’ specifically mentioned in the statute, and that their use and implementation would clearly effect ‘the safety of persons or buildings.’” Referencing the recent protests and demonstrations across the nation, the City “. . . contends that revealing specific tools, security measures, procedures, and implementation and tactics of crowd and riot suppression would negatively impact the safety of persons (both police and civilian), as well as impact the security of buildings and facilities located in the Commonwealth. The disclosure of these records would likely jeopardize public safety.” The City posits that “[a] domestic terrorist would find these records ‘useful to maximize damage.’ As seen nationwide as well as locally, those looking to commit acts of violence and destruction are arriving at protests armed with defensive as well as offensive weapons intended to combat police tactics. Providing specific tactics and tools utilized by the police during these violent confrontations would allow those intent on committing violence and destruction the ability to better prepare and counter police tactics, possibly rendering these crowd control tactics ineffective.” 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

Mike Vigneux SPR20/1876 Page 3 October 15, 2020 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 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. In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the City to redact portions of the responsive records, the City must provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Mike Vigneux SPR20/1876 Page 4 October 15, 2020 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of a representative sample of the responsive record for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Neal McNamara