Jeannette Hinkle v. Newton, City of - Police Department (SPR 20220840)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0840 Steven Smith Newton Police Department Information Technology Bureau 1321 Washington Street Newton, MA 02465 Dear Mr. Smith: I have received the petition of Jeannette Hinkle, of Cape Cod Times, appealing the response of the Newton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 5, 2022, Ms. Hinkle requested “[c]opies of documents showing: [t]he names and corresponding badge/ID numbers of all members of the Newton Police Department.” On April 8, 2022, the Department responded, providing a portion of the records and withholding badge/ID numbers pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). Unsatisfied with the Department’s response, Ms. Hinkle petitioned this office and this appeal, SPR22/0840, 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 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. 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. 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

Steven Smith SPR22/0840 Page 2 April 25, 2022 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 April 8th response In its April 8, 2022 response, the Department asserts that it “. . . refrains from producing portions of these documents on the grounds that the information is used by the City for security purposes and the release of the information will likely jeopardize public safety or cyber security. As such, this information is shielded from disclosure by M.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. 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 maximize damage.” PETA, 477 Mass. at 289-90. 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

Steven Smith SPR22/0840 Page 3 April 25, 2022 resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. The Department’s response did not contain the specificity required in a denial of access to public records. Based on the Department’s response, I find it has not met its burden to show that the badge/ID numbers sufficiently “resemble the records listed as examples in the statute as contemplated in PETA, at 289-90. The examples provided in the statute are “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.” G. L. c. 4, § 7(26)(n). As such, it is unclear how the requested information is similar to these examples or one a terrorist would find useful to maximize damage. Additionally, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the information, is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Conclusion Accordingly, the Department is ordered to provide Ms. Hinkle 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: Jeanette Hinkle