Donovan Lee v. Northampton, City of - Police Department (SPR 20231126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1126 Julie Gaudreau Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Gaudreau: I have received the petition of Donovan Lee appealing the response of the Northampton 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: [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 April 19, 2023, the Department responded and stated it was withholding the records responsive to Request # 1 pursuant to Exemptions (b), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(b), (f), (n). Regarding Request # 2, the Department provided training logs for the past two years with redactions made pursuant to Exemptions (b), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(b), (f), (n). Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR23/1126, 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 town 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

Julie Gaudreau SPR23/1126 Page 2 June 13, 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. 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 19th Response In its April 19, 2023 response, in regard to Request # 2, the Department provides “copies of the training logs for firearms and less lethal weapon qualifications and re-qualifications for the past two years. [The Department] redacted the serial numbers from the training records using the same exemptions and for the same reasons [as provided in the response].” In regard to Request # 1, the Department asserted it was withholding the records responsive to that request pursuant to Exemptions (b), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(b), (f), (n). Current Appeal In his appeal, Mr. Lee argues that the records responsive to Request #1 should not be withheld pursuant to the Exemptions cited by the Department in its response. 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).

Julie Gaudreau SPR23/1126 Page 3 June 13, 2023 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 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). In its response, the Department states: Your request necessarily implicates policies and practices of local emergency responders who may be called upon to assist in an actual or threatened public safety emergency. Providing any of the details requested would quickly indicate a range of emergency response tactics, potential limits on the ability to address particular emergency conditions, and provide vital information on protective and defensive equipment that might be used to protect the lives and safety of emergency personnel and potential victims. Because disclosure of the requested information would severely compromise emergency response, and thereby pose a clear risk to the public safety, your request is respectfully denied. Based on the Department’s response, it is unclear how the proper performance of necessary governmental functions requires the withholding of the record responsive to Request # 1. Therefore, the Department has not met its burden to withhold the responsive record under Exemption (b). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281,

Julie Gaudreau SPR23/1126 Page 4 June 13, 2023 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the Department argues: An answer to your request would prejudice the ability of law enforcement to investigate matters that are, or might be, criminal in nature. Disclosure of the requested materials would advise actual and potential criminals of the investigatory resources that this department could deploy as part of its investigatory and crime prevention efforts. In turn, this would advise potential and actual criminals of weaknesses and structural limitations in the City’s methods and equipment that would allow wrongdoers to circumvent and thwart investigatory efforts of the department. Therefore, your request is respectfully denied. Based on the Department’s response, it is unclear how the record responsive to Request # 1 constitute investigative materials nor how disclosure of any segregable portions “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). 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. 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.

Julie Gaudreau SPR23/1126 Page 5 June 13, 2023 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. Under Exemption (n), the Department argues: Providing any of the details requested would quickly indicate a range of emergency response tactics and potential limits on the City’s ability to address particular emergency conditions; public safety would clearly be put at risk. It would provide vital information on protective and defensive equipment that might be used to protect the lives and safety of emergency personnel and potential victims. Because disclosure of the requested information would severely compromise emergency response, and thereby pose a clear risk to public safety, your request is respectfully denied…. We are aware of a decision by the Supervisor of Public Records in August, 2016 (SPR15/544) which upheld a decision by the State Police not to release “a copy of inventory list of all non-lethal and less than lethal directed energy weapons” under exemption (n). In this Decision, the Supervisor of Public Records agreed that “in the Department’s reasonable judgment it believes releasing an inventory and/or technical specifications of weapons it does (or does not have) would undermine public safety as it relates to security measures and emergency preparedness. The release of this information would be 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 record responsive to Request # 1 pursuant to Exemption (n). Although the Department explains that this record “would quickly indicate a range of emergency response tactics and potential limits on the City’s ability to address particular emergency conditions,” it is unclear here how the particular information contained in the responsive record 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. 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.

Julie Gaudreau SPR23/1126 Page 6 June 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee