Donovan Lee v. Palmer, Town of - Police Department (SPR 20231125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1125 Christopher J. Burns Chief of Police Palmer Police Department 4417 Main Street Palmer, MA 01069 Dear Chief Burns: I have received the petition of Donovan Lee appealing the response of the Palmer Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 29, 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/0741 Determination of the Supervisor of Records (April 27, 2023). In my April 27th determination, I ordered the Department to clarify its claims under Exemption (n) for withholding responsive records. Subsequently, the Department responded on May 10, 2023, reiterating its claims under Exemption (n), and also citing Exemption (b) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(b), (n). Unsatisfied with the Department’s response, Mr. Lee further 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 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

Christopher J. Burns SPR23/1125 Page 2 June 13, 2023 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. 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 May 10th Response In its May 10, 2023 response, the Department cites Exemptions (b) and (n) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(b), (n). 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 governmental 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 Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United

Christopher J. Burns SPR23/1125 Page 3 June 13, 2023 States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Department argues the following: This exemption applies because it is a primary function of the Palmer Police Department to enforce laws, maintain public order, and ensure public safety which includes the primary duties of investigation, apprehension, and detention of individuals suspected of criminal offenses. Information regarding the procedures and weapon systems used by Palmer police officers in the performance of law enforcement functions relates solely to the internal workings of the Palmer Police Department. Moreover, disclosure of the security resources available to and utilized by the Palmer Police Department in carrying out its primary duties would significantly impair the proper performance of the necessary government functions of this agency. Knowledge of information specific to the equipment used, the quantity of equipment available to officers, the weapons systems and tactics available, the proficiency levels of personnel, the identification of specialized personnel or units and, the numbers of personnel trained in any specific weapon system, would be detrimental to the safety and security of the police and the public as it could enable a person of nefarious intent to circumvent or defeat a police response to criminal offenses or public safety incidents. In this case, the Department has not demonstrated that the requested records are solely related to internal personnel rules and practices. Additionally, the Department has not shown how release of the records would significantly risk circumvention of department regulations and statutes. Accordingly, the Department has not met its burden to withhold the responsive records under Exemption (b). 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.

Christopher J. Burns SPR23/1125 Page 4 June 13, 2023 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.’” 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. 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 resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the Department argues the following: [Mr. Donovan is] requesting these records in the interest of public disclosure. The records requested would publicly disclose specific information related to the quantity and type of weapons/weapons systems used by or available for use by sworn police personnel in the performance of their duty, to include lethal and non- lethal weapons, and the level of proficiency of specific individual personnel, to include the identification of personnel who may or may not be specialized in the use of specific weapons systems and tactics. Therefore, disclosing the level of preparedness of department personnel to respond to critical incidents, the type of which may require a level of response where weapons may be utilized. Such incidents are those which are rapidly evolving, volatile and have a high potential for violence that would put the lives and safety of citizens and police personnel in danger. The Department, in its reasonable judgement, believes that providing [Mr. Donovan] with the requested information would cause information to be readily available to any person who may choose to utilize said information to aid them in the preparation, planning and execution of illegal activities, the type of which have a propensity for violence against unsuspecting citizens and/or police officers. Such criminality and acts of violence are increasingly common in society and include, but are not limited to, mass casualty incidents where an aggressor

Christopher J. Burns SPR23/1125 Page 5 June 13, 2023 purposely selects so called “soft targets” where people are largely unprotected, and the attacker’s weapon of choice will have the most impact against those innocent citizens. . . . Whether perpetrated by a lone actor or violent extremist group, it is common that such acts are the result of planning and preparation where targets are selected for their vulnerability. These targets are commonly the subject of reconnaissance and studied by the actor(s) to determine vulnerability prior to such an attack. Any vulnerability assessment by a potential attacker could include readily available information of a police agency’s level of preparedness and ability to respond and intervene in such an incident. Persons planning such an incident would benefit greatly from knowing the types of weapons and tactics they would encounter as well as the proficiency levels of the first responding officers. Based on the information provided by the Department, I find the responsive records do not resemble the records enumerated in Exemption (n). Additionally, the Department has not demonstrated the likelihood that a terrorist would find these records “useful to maximize damage.” PETA at 290. As such, I find the Department has not met its burden to withhold the responsive records under Exemption (n). Conclusion Accordingly, the Department is ordered to provide Mr. Lee with a response to his 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: Donovan Lee