David Jeswald v. Massachusetts Department of State Police (SPR 20202310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2020 SPR20/2310 Christine Dowling, Esq. Staff Counsel Department of State police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of David Jeswald appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 5, 2020, Mr. Jeswald requested the following records: 1. Any and all content, including but not limited to dashcam video and related audio as well as body camera video recorded showing [an identified Trooper] and his patrol car through his initial probationary period for the Massachusetts State Police Department or unless still in probationary period all is requested. 2. All citations and police reports mentioning [the identified Trooper]. 3. All face mask departmental policies. 4. The Automated Vehicle Locator (“AVL”) data and information for [the identified Trooper] for the shift on September 29, 2020. 5. All information related to the outcome of complaints made against [the identified Trooper]. 6. Drone cam video that shows [the identified Trooper] on duty. Item 2 of this request was the subject of a fee petition filed by the Department. See SPR20/2271 Determination of the Supervisor of Records (November 24, 2020). The Department provided a response on November 19, 2020, which included records responsive to items 3 and 5. The Department also indicated that it did not possess records responsive to items 1 and 6, and denied access to records responsive item 4 pursuant to Exemptions (a), (f), (n), (o), and (p) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f), (n), (o), (p). Unsatisfied with the Department’s response, Mr. Jeswald petitioned this office and this appeal, SPR20/2310, was opened as result. 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

Christine Dowling, Esq. SPR20/2310 Page 2 December 9, 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); 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 Department’s November 19th response In its November 19, 2020 response, with respect to item 4, the Department explains that “AVL data is store[d] in a database, which contains information comprised of time, location, speed, and distance traveled. This data set is linked to the assigned unit’s identification and the name of the individual trooper to whom the unit is assigned. Almost all Department vehicles are ‘take home’ vehicles, which sworn members are required to have access to, even when off duty, in order to be able to rapidly respond to emergency situations. Thus, at the beginning and end of each shift, a vehicle is, in a typical situation, at a trooper’s home.” The Department explains that “[o]nce these data sets are exported into a database or spreadsheet, this information could then be loaded into commercially available mapping software that depicts the visual representation of the travel path taken by each vehicle, including what roads were travelled, what addresses were visited, and how long the vehicle remained at each address.” The Department claims that the AVL data, which contains information, such as the “. . . home addresses of a sworn member, the pattern of travel taken by a sworn member to and from his assigned barracks each day, patrol patterns, surveillance and investigative efforts conducted by a sworn member, and potentially the home addresses or other protected location of victims and witnesses to which the sworn member may have traveled[,] is exempt from disclosure under Exemptions (a), (f), (n), (o), and (p) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Christine Dowling, Esq. SPR20/2310 Page 3 December 9, 2020 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Department explains that “. . . any record containing the home address of a victim is exempt from disclosure under M. G.L. c. 66 § 10B. M. G. L. c. 66 § 10B states ‘[t]he home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed.’ As a result, any AVL data identifying the home address of the victim of a crime would be statutorily exempt from disclosure.” The Department further states that “Section 10B exempts the home address of ‘law enforcement . . . and any other public safety and criminal justice system personnel.’” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f).

Christine Dowling, Esq. SPR20/2310 Page 4 December 9, 2020 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the Department states that the requested records contain information that relate to criminal investigations, therefore, they are exempt. Citing the Bougas decision, the Department explains that “[t]he AVL information . . . could include the address of a crime scene, witness, victim, or suspect visited by the sworn member during the period in question. Further, in the case of ongoing investigative efforts, the address of any person or property under surveillance (and the places from which surveillance is being conducted) will be captured. The disclosure of that information prior to the completion of a criminal investigation would reveal confidential investigative techniques, procedures, or sources of information.” The Department asserts that “[t]he prejudice to effective law enforcement is recognized by the courts: this information is privileged, and generally not subject to disclosure, even in civil and criminal proceedings involving informants and surveillance locations. See Commonwealth v. Bonnett, 472 Mass. 827, 846–51 (2015) (informants); Commonwealth v. Lugo, 406 Mass. 565 (1990) (surveillance locations).” 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

Christine Dowling, Esq. SPR20/2310 Page 5 December 9, 2020 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 “[because 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. Under Exemption (n), citing PETA, the Department indicates that “. . . the requested AVL data contains the locations and home address of a sworn member, as well as his pattern of travel to and from his assigned barracks and home. If released, this would allow for the mapping of travel patterns to and from the home of sworn member as well as within his patrol areas, and is information that is likely to jeopardize public safety.” The Department states that “[f]ollowing the analysis adopted in the PETA case, this is information that a terrorist organization or other bad actor, bent on harming police officers or the public would use to assess vulnerabilities and opportunities for a possible attack. Police officers face a continuing, heightened risk of personal danger as a consequence of their role as law enforcement officers. For good reason—and to protect both police officers and the public‐‐the public records law does not provide for the release of such sensitive information.” Exemptions (o) and (p) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l 50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6.

Christine Dowling, Esq. SPR20/2310 Page 6 December 9, 2020 G. L. c. 4, § 7(26)(o). Exemption (p) Exemption (p) applies to: the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o) G. L. c. 4, § 7(26)(p). Under Exemptions (o) and (p), the Department asserts that “AVL data that consists of the home addresses of sworn members and their family members are categorically excluded under G.L. c. 4, §7, cl. 26 (o) and (p) . . . Subsection (o) exempts from public disclosure the home address of employees of the Commonwealth of Massachusetts. Subsection (p) exempts the home address of their family members.” With respect to whether records can be redacted, the Department states that it has “. . . concluded that any non‐exempt data is not segregable because it is inextricably intertwined with exempt data and, even if it could be segregated, given the amount of exempt information contained in the records the resulting production would be functionally useless. See Mead Data Cent., Inc. v. United States Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (no requirement to segregate when results would be ‘so heavily redacted . . . that the records would be rendered functionally useless to [any requestor].’); see also SPR13/144.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold responsive records, in their entirety, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’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

Christine Dowling, Esq. SPR20/2310 Page 7 December 9, 2020 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). 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 Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Items 1 and 6 Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Department indicates that it does not possess records responsive to the above referenced requests, I find that Mr. Jeswald’s appeal regarding this portion of his appeal is resolved. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Jeswald