Joshua Dankoff v. Lawrence, City of - Police Department (SPR 20210868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2021 SPR21/0868 Captain James Fitzpatrick Lawrence Police Department 90 Lowell Street Lawrence, MA 01840 Dear Captain 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). On October 8, 2020, Mr. Dankoff requested 8 categories of records. This appeal pertains to the following categories of the request: Policy request 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 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 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 James Fitzpatrick SPR21/0868 Page 2 April 20, 2021 - 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.” Previous appeal This request was the subject of a previous appeal. See SPR20/2389 Determination of the Supervisor of Records (December 16, 2020). In my December 16th determination, I directed the Department to clarify whether it possesses records responsive to certain items of Mr. Dankoff’s original request. On January 6, 2021, the Department responded indicating it does not possess responsive records. Unsatisfied with the Department’s response, Mr. Dankoff petitioned this office and this appeal, SPR21/0868, 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). 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 January 6th response In its January 6, 2021 response, the Department asserts that it, “. . . does not have, or maintain, records responsive to [Mr. Dankoff’s] requests; other than what was provided.”

Captain James Fitzpatrick SPR21/0868 Page 3 April 20, 2021 Policy request 1 In his appeal petition, Mr. Dankoff states: We understand from discussions with advocates that Lawrence PD’s Gang Unit may use the term “Security Threat Group” and that the Gang Unit has a “Security Threat Group Validation Form” which lists the criteria and number of points assessed. As such, we reiterate our original request, with hopes that the term ‘Security Threat Group’ clarifies some of the policy concerns we have. The [] Department states that they have no responsive [records] to our questions about policies concerning how people are identified as being gang involved. However, we attach as evidence a copy of a [] Department FOI Profile. On the FIO Profile, there is a specific section dedicated to “Gang Information.” The section includes several questions: “Gang name,” “Status,” “Prosecution Alert,” “Self Admit,” “Validation Alert,” and “Number of FIOS.” This form clearly demonstrates that the [] Department seeks and organizes gang information. . . . This document itself would be a responsive record to our request, and we do not find it credible that there are no responsive records available.” Based on the above clarification, I find the Department must conform whether it possesses any of the documents identified by Mr. Dankoff as responsive to his request. 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. 66, § 10(a)(ii). -- Data request 6 With respect to the above, Mr. Dankoff states: As [the] attached exhibit demonstrates, [the Department] evidently identifies people as gang affiliated, hence why it has an entire section dedicated to “Gang Information.” 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 such a list, given that it would be merely compiling information that already exists in its electronic database and merely requires it to extract requested data. Additionally, [the Department’s] 2019 Annual Report states that the Department takes steps to address gang violence. . . . It is impossible for [the Department], in its own annual reports, states that its Gang Unit is involved to the degree just articulated, to then also say that it has no responsive records to our request.

Captain James Fitzpatrick SPR21/0868 Page 4 April 20, 2021 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. 66, § 10(a)(ii). Under the Public Records Law, “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