Thomas G. Charette v. Chicopee, City of - Police Department (SPR 20210672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0672 Captain Eric Watson Chicopee Police Department 110 Church Street Chicopee, MA 01020 Dear Captain Watson: I have received the petition of Thomas G. Charette appealing the response of the Chicopee Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2021, Mr. Charette made two separate requests related to external video surveillance footage of the Chicopee Police Department's facility for specified dates and times. The Department provided a response on March 10, 2021, withholding responsive record pursuant to Exemptions (b) and (n). G. L. c. 4, § 7(26)(b), (n). Unsatisfied with the Department’s response, Mr. Charette petitioned this office and this appeal, SPR21/0672, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Charette’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As 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

Captain Eric Watson SPR21/0672 Page 2 April 1, 2021 such, Mr. Charette may wish to consider another means of seeking to obtain any existing responsive records. 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 March 10th response In its March 10th response, the Department asserts that the responsive records are exempt under Exemptions (b) and (n). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an

Captain Eric Watson SPR21/0672 Page 3 April 1, 2021 agency”); - se - e -al-so- -G-lo-b-e -N-e-w-sp-a-p-e-r C-o-.- v-. -B-o-st-on- -R-et-ir-e-m-en-t- B-d-., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Department posits, “[r]elease of this video footage would clearly expose the procedures and practices used by the police department including, but not limited to, the time frames of the shift change, the length of time police vehicles remain at the station during the change and staffing levels. The two camera views requested specifically view the two main areas of the department where shift change occurs for both uniformed and un- uniformed members of the department. This information, if released, could be used by a criminal element to reduce the likelihood of being captured and/or jeopardize the safety of Police Department personnel. Therefore, the proper performance of necessary government functions will be inhibited by disclosure.” 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

Captain Eric Watson SPR21/0672 Page 4 April 1, 2021 maximize damage.” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). 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), the Department posits, “[r]elease of this video footage could jeopardize the safety and security of the Chicopee Police Department's facility and the employees therein. It should be noted that not only does the facility house the operations of the Chicopee Police Department, it also houses the civilian WestComm Regional Emergency Communications Center. The video would reveal the location of the cameras, the field of view of the recordings including the camera's effective range and the quality of the footage which is not readily apparent to the public upon viewing the physical camera. Disclosure would reveal the capacity of the Police Department to monitor not only the locations in question, but every other area covered by a similar camera on the Police Department's facility and potentially undermine safety measures as they relate to the building.” Based on the Department’s response, I find it has met its burden to show how disclosing any portion of the responsive video recordings would depict the location of hidden surveillance which would hinder “proper performance of necessary governmental functions.” Therefore, I find the Department has met its burden to withhold the responsive video recordings under Exemption (b). Consequently, I will not opine on the Department’s Exemption (n) claim supporting non-disclosure of the responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Charette is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Captain Eric Watson SPR21/0672 Page 5 April 1, 2021 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas G. Charette Chief William R. Jebb