Joanna M. Boody v. Holyoke, City of - City Clerk (SPR 20222042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2022 SPR22/2042 Brenna Murphy McGee, MMC City Clerk/Records Access Officer City of Holyoke 536 Dwight Street, Room #2 Holyoke, MA 01040 Dear Ms. Murphy: I have received the petition of Joanna Boody appealing the response of the City of Holyoke (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 9, 2022, Ms. Boody requested the following records: [1] Policies regarding the cleaning, inspection, and reporting of firearms and all other weapons. If there’s no policy, I assume there might be forms that HPD uses to document the cleanings, etc. I would request blank copies of each form. [2] Actual inventory of all firearms and other weapons held by the Holyoke Police Department … [3] … audits on these weapons have there been in the last 5 years[.] The City responded on August 25, 2022. Unsatisfied with the response, Ms. Boody petitioned this office and this appeal, SPR22/2042, 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 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

Brenna Murphy McGee, MMC SPR22/2042 Page 2 September 20, 2022 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. The City’s August 25th Response In its August 25, 2022 response, the City cited Exemptions (b) and (n) to withhold the requested records. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). In its response, the City stated, “[a]s the information may inhibit or reduce the proper performance of a necessary government function. Disclosure is exempt under exemption (b).” 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.

Brenna Murphy McGee, MMC SPR22/2042 Page 3 September 20, 2022 G. L c. 4, § 7(26)(n). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 286 (2017). The first prong 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.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90. In its response, the City stated that, “. . . [E]xemption (n) … provides that such information as it may relate to public safety, security measures and emergency preparedness shall not be disclosed.” Upon review of the City’s response, the City did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the City’s necessary government function or how disclosure would impact public safety, security measures and emergency preparedness, The City must clarify these matters. Accordingly, the City is ordered to provide Ms. Boody 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.

Brenna Murphy McGee, MMC SPR22/2042 Page 4 September 20, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Joanna Boody