Elizabeth Schafer v. Brookline Police Department (SPR 20221532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2022 SPR22/1532 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Elizabeth Schafer appealing the response of the Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 21, 2022, Ms. Schafer requested “a list of all Larimore databases currently in use by BPD.” For each database, she further requested “any record layouts, data dictionaries, code tables, or other types of manuals that define, in plain English, the meaning of the column headers, and any codes, acronyms, abbreviations or other shorthand terms used for entries in the data.” The Department responded on June 22, 2022 denying the request. Unsatisfied with the Department’s response, Ms. Schafer 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 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. 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

Amanda Williams SPR22/1532 Page 2 July 19, 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 June 22nd Response In its June 22, 2022 response, the Department states that it is denying the release of records pursuant to Exemption (g) of the Public Records Law. See G. L. c. 4, § 7(26)(g). Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). Based on the Department’s response, it is unclear how any of the records requested by Ms. Schafer would meet all six of the criteria contained in Exemption (g). Further, the Department has not identified all the records, categories of records or portions of records in its

Amanda Williams SPR22/1532 Page 3 July 19, 2022 possession that are responsive to the request. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Schafer with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Schafer