Daniel D. Jaffe v. Massachusetts State Police (SPR 20220066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0066 Joshua Reilly, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Reilly: I have received the petition of Daniel Jaffe, of the Committee for Public Counsel Services, 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). On December 17, 2021, Mr. Jaffe requested “[f]or each officer listed in the attached Microsoft Excel spreadsheet: the unit, division, precinct, and/or barrack assignment for that officer.” The Department responded on December 30, 2021, denying access to responsive records pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). Unsatisfied with the Department’s response, Mr. Jaffe petitioned this office and this appeal, SPR22/0066, 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 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

Joshua Reilly, Esq. SPR22/0066 Page 2 January 24, 2022 custodian must provide the responsive records. The Department’s December 30th response In its December 30, 2021 response, the Department asserts, “. . . the requested records relate to security and safety of persons, and would reveal security measures and threat preparedness that a terrorist would find useful to maximize damage and, therefore, their release would likely jeopardize public safety.” The Department explains that “[g]iven that the assignments themselves are intertwined with public safety concerns, the Department must be circumspect in the level of factual detail it can provide to justify its determination. In this instance, the information requested would reveal the total number of staff assigned to specific barracks and/or troop and available to respond to a particular event and/or within a specific geographic area. The Department asserts that such staffing data is related to its overall security plan and disclosure would not be in the public interest.” The Department further posits that “. . . the requested information may also reveal the identities and numbers of staff assigned to specialized units including but not limited to the Executive Protection Unit (EPU), Gang Unit, Anti-Terrorism, etc. An individual who sought to maximize damage to persons in the Commonwealth would find this information useful insofar as it would provide that individual with detail about, and insight into, the way the Department undertakes to protect and secure persons and buildings within the Commonwealth, including preparation, planning, patterns, and personnel. Accordingly, in the reasonable judgment of the Department, disclosure of the withheld information would be likely to jeopardize public safety.” Exemption (n) Exemption (n) permits the withholding of: 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. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety.

Joshua Reilly, Esq. SPR22/0066 Page 3 January 24, 2022 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.’” 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 “[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. Based on the Department’s response, I find it has not met its burden to withhold the requested record pursuant to Exemption (n). Although the Department explains that “. . . such staffing data is related to its overall security plan[,]” it is unclear how the requested information resembles the records listed in the statute. See id. at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Also, although the Department indicates that the requested information is one a terrorist would find useful, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Further, it is unclear why the record may be withheld in its entirety. Particularly, it is uncertain whether disclosure of certain categories is not “likely to jeopardize public safety or cyber security” as required by Exemption (n). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Jaffe 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.

Joshua Reilly, Esq. SPR22/0066 Page 4 January 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel Jaffe