Joshua Dankoff v. Lawrence, City of - Police Department (SPR 20202389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2020 SPR20/2389 James Fitzpatrick Lawrence Police Department 90 Lowell Street Lawrence, MA 01840 Dear Mr. Fitzpatrick: I have received the petition of Joshua Dankoff of Citizens for Juvenile Justice (CFJJ), appealing the response of the Lawrence Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 8, 2020, Mr. Dankoff requested 8 categories of records. This appeal pertains to the following categories of the request: Policy request 1. Data sharing and cooperation agreements or memorandums of understanding between the police department and: a. Federal immigration authorities. b. Regional intelligence centers, including the Boston Regional Intelligence Center (“BRIC”) or the Massachusetts Commonwealth Fusion Center. c. School districts or individual schools in your jurisdiction, including policies that guide practice of School Resource Officers. 2. Policies concerning gathering and storing of gang information, including: a. Policies for identifying and labeling gang members or individuals suspected of gang affiliation, b. Policies for maintaining and verifying information contained in any “gang database.” c. Policies for individuals to appeal listing on such a database d. Policies related to the sharing of database information with other local or federal authorities. Data request 5. Stop and frisk and/or field interrogation data for all stop and frisk/field 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

James Fitzpatrick SPR20/2389 Page 2 December 16, 2020 interrogation incidents from 2015 through when the search is conducted in 2020 is requested. To the extent possible, we request raw data with personal identifying information redacted to protect privacy. However, we request that any redactions of personally identifiable information do not extend any further than necessary. In particular, we request incident-level data in CSV or excel format (or, if necessary another electronic format) that includes: - Sex of individual(s) encountered - Age of individual(s) encountered - Race of individual(s) encountered - Ethnicity of individual(s) encountered - Location of incident - Time and date of incident - Source of the field incident report (ie did this report come in via a 911 call, or other means) - Whether the field incident included a search of individuals. - Outcome of field interrogation be included in the release, including whether it led to an arrest or not. - Name of officer filing the field incident report (or other similarly named report) - Badge number of officer filing the field incident report (or other similarly named report) - Name of other officers listed in the report, if any - Badge numbers of other officers listed in the report, if any 6. Data regarding how many people have been identified by your department as gang affiliated, or gang involved. To the extent possible, we request raw data with personal identifying information and addresses redacted to protect privacy. . . . Specifically, we request an extract of your department's gang member database (or associated list) to include the following columns: - Sex of individual(s) on the list - Age of individual(s) on the list - Race of individual(s) on the list - Ethnicity of individual(s) on the list - Whether the individual on the list is a resident of your municipality or not - Name of officer who entered the information determined that the individual fulfilled the gang assessment criteria - Badge number of the officer who determined that the individual fulfilled the gang assessment criteria - Date individual entered the gang database, - Most recent date gang related information for the individual was reviewed or entered.” The Department provided a response on October 30, 2020, indicating it does not possess records responsive to these categories. Unsatisfied with the Department’s response, Mr. Dankoff petitioned this office and this appeal, SPR20/2389, was opened as a result.

James Fitzpatrick SPR20/2389 Page 3 December 16, 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. Current appeal In its October 30, 2020 response, the Department states that it has “[n]o responsive records.” Policy requests 1 and 2 In his appeal petition, with respect to request 1, Mr. Dankoff states, “[i]t is concerning that the [Department] replies ‘no responsive records’ for part (c) of this request. In accordance with M. G. L ch. 71, § 37P, which states that ‘The superintendent and the chief of police shall enter into a written memorandum of understanding which shall be placed on file in the offices of the school superintendent and the chief of police’. CfJJ hopes that the [Department] is in possession of this record, so as to be in line with the statutory requirements of M. G. L ch. 71, § 37P.” With respect to request 2, Mr. Dankoff also states “[i]t is difficult to fathom that while the [Department] has a Gang Unit on their official website, and makes reference to ‘verified’ gang members in its website . . . there is no written policy regarding gang identification, no gang database, and no guidelines on gang-related information sharing with other local or federal authorities. If, in fact, Lawrence Police has no policy at all in response to gang-related policy requests, we ask the [Department] to affirm that they have no such policy.” 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.

James Fitzpatrick SPR20/2389 Page 4 December 16, 2020 The duty to comply with requests for records 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, § 10(a)(ii). Data request 5 With respect to data request 5, Mr. Dankoff states that “CfJJ finds it concerning that although the [Department] replies ‘no responsive Records’ for this request, their Stop & Frisk and Threshold Inquiries manual, section IV.F., states that ‘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.’ Assuming that the [Department] is following their protocol, CfJJ believes that the department is in possession of stops and [f]risks records and should provide that information to CfJJ’s request in accordance with MA Public Records Law, G.L. c. 66.” In light of Mr. Dankoff’s claims regarding the existence of responsive records per the Department’s Stop and Frisk Manual, 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 records 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, § 10(a)(ii). Data request 6 In his appeal petition, Mr. Dankoff posits: . . . it is difficult to believe that the [Department] has a gang unit but does not have any ‘responsive records’ to gang-related data or policies. It is to be emphasized that the request only asks for the number of people on the gang database, as well as information about their race, gender, race, and age of the individuals. We find it difficult to believe that the [Department] identifies individuals as being ‘verified gang members’ (see, for example, https://www.lawpd.com/CivicAlerts.aspx?AID=165) but then claims to not have a list of verified members, or other documentation responsive to our request. We request that the [Department] be required to release information from its database, given that it would be merely compiling information that already exists in its electronic database and merely requires it to extract requested data. This is in accordance with MA Public Records Law, G.L. c. 66. In light of the above, the Department must clarify whether it possesses responsive records; specifically, if the requested data exists in its database. The duty to comply with requests for records 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,

James Fitzpatrick SPR20/2389 Page 5 December 16, 2020 “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 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: Joshua Dankoff