Donovan Lee v. Longmeadow, Town of - Town Clerk (SPR 20230629)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2023 SPR23/0629 Brittney Kraus Records Clerk Longmeadow Police Department 34 Williams Street Longmeadow, MA 01106 Dear Ms. Kraus: I have received the petition of Donovan Lee appealing the response of the Longmeadow Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2023, Mr. Lee requested the following: [1] Any and all weapons inventory lists maintained by the department, to include all “less Lethal” weapons, that are owned or authorized by the department. [2] Any and all logs of each officer’s qualifications and re-qualifications with firearms or “less-lethal” weapons. On March 30, 2023, the Department responded and indicated that it was withholding 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. Lee petitioned this office and this appeal, SPR23/0629, 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. 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

Brittney Kraus SPR23/0629 Page 2 April 18, 2023 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. The Department’s March 30th response In its March 30, 2023 response, the Department cited Exemption (n) to withhold the responsive records. 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. 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.

Brittney Kraus SPR23/0629 Page 3 April 18, 2023 In the Department’s March 30, 2023, response it states, “[t]his Department, in its reasonable judgement, believes that providing you with the requested information would undermine public safety as it relates to the Department’s security measures and emergency preparedness.” The Department further states, “…the disclosure of information responsive to this request may prove detrimental to the Department’s law enforcement and public safety efforts.” Based on the Department’s response, I find it has not met its burden to withhold the requested record pursuant to Exemption (n). 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, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the records are “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Further, it is unclear why the records may be withheld in their entirety. 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. Lee with a response to the 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 this response to this office at pre@sec.state.ma.us. Mr. Lee may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee