Hector Montalvo v. Haverhill, City of - Police Department (SPR 20212774)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2021 SPR21/2774 Aniela Ricci Records Clerk City of Haverhill Police Department 40 Bailey Boulevard Haverhill, MA Dear Ms. Ricci: I have received the petition of Hector Montalvo appealing the response of the Haverhill Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2021, Mr. Montalvo requested the following: . . . memo issued to department on closing police station to the public because of COVID. . . . all email discussions on adding buzzing system at the station. . . . memo on the installation date of the buzzing system installed at the station front lobby. . . . name of person ordering the buzzing system to be installed. Previous Appeal This request was the subject of a previous appeal. See SPR21/2497 Supervisor of Records Determination (October 8, 2021). In my October 8th determination, I ordered the Department to identify the records in its possession that it intends to withhold, and to explain the applicability of Exemption (n) to the responsive records. Subsequently, the Department responded on October 18, 2021. Unsatisfied with the Department’s response, Mr. Montalvo appealed, and this case 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 agency or 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

Aniela Ricci SPR21/2774 Page 2 November 3, 2021 municipality 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. Att’y 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. Current Appeal In his appeal petition, Mr. Montalvo argues that there is “[n]o possible way that the . . . email provided by HPD should be redacted in full.” He further contends “that HPD hasn’t provided the memo requested about the closing of the police department lobby front door.” He also argues that “[t]he memo HPD stated was being use to keep police station closed was recommended by CDC.” The October 18th Response In its October 18, 2021 response, the Department provides a copy of an email in redacted form citing Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). 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. 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.

Aniela Ricci SPR21/2774 Page 3 November 3, 2021 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. Here, the record being provided to [Mr. Montalvo] contains internal instructions to Police Department staff regarding the security of the Police Station, how visitors to the station are to be allowed access to the building, and alternative points of access for staff, all of which has been redacted pursuant to Exemption (n). This email memorandum constitutes a record reflecting “plans, policies, procedures . . . which relate to . . . security measures, [and] the security or safety of persons or buildings, structures, facilities . . . within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian . . . is likely to jeopardize public safety” G. L. c. 4, § 7(26)(n). Moreover, this is precisely the type of information that a “terrorist would find useful to maximize damage;” . . . providing information on how to access the Police Station (that is not otherwise available to the public at large), to a person intent upon damaging public safety or the security of public facilities, would enable that person to “maximize damage.” Where the Department has shown that the redacted portion of the responsive email contains plans, policies, and procedures concerning how visitors access the building, and alternative access to the building for staff, I find the Department has shown how the redacted portion of the email is the type of record listed under Exemption (n). Further, where the Department has explained that the redacted portion would provide information on how to access the police station that is not available to the public at large, I find the Department has met its burden to redact that portion of the email pursuant to Exemption (n). Records in Existence In a phone conversation with a staff attorney of the Public Records Division, a representative for the Department indicated that the Department may not possess records of the installation of its buzzer system. In its response, the Department confirms “that the buzzer at the front of the Police Station has existed for over 20 years: after diligent search records relating to the installation of the buzzer have not been located.” Please be advised that 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Aniela Ricci SPR21/2774 Page 4 November 3, 2021 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Montalvo is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Hector Montalvo