Donovan Lee v. Longmeadow, Town of - Police Department (SPR 20231154)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2023 SPR23/1154 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. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0629 Determination of the Supervisor of Records (April 18, 2023). In my April 18th determination I found that the Department did not meet their burden to withhold the requested records pursuant to Exemption (n) of the Public Records Law. On May 3, 2023, the Department provided un-redacted records responsive to part 2 and provided redacted records responsive to part 1 of the request. The Department stated that the redactions were pursuant to Exemption (n) of the Public Records Law. Unsatisfied with the Department’s response Mr. Lee petitioned this office and this appeal, SPR23/1154, 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

Brittney Kraus SPR23/1154 Page 2 June 2, 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. 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 May 3rd response In its May 3, 2023 response, the Department cited Exemption (n) to redact responsive records to part 1 of the request. 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

Brittney Kraus SPR23/1154 Page 3 June 2, 2023 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. In the Department’s May 3, 2023, response it states the following: In response to the Supervisor of Records' request to provide additional information to meet the burden of supporting "Exemption N", the actual numbers and inventory of the Longmeadow Police Department's firearms and non-lethal equipment has been redacted out of an abundance of caution. Public dissemination of specific, detailed information on the equipment utilized by the Longmeadow Police Department could jeopardize the safety of our officers and our community. Someone with nefarious intentions and/or suspected of criminal activity could gain knowledge and the ability to procure equipment to counter the Longmeadow Police Department's efforts to maintain a safe community. The protection of this information is essential to ensure our success in controlling criminal activity while protecting our citizens. This redaction is consistent with the Court's approval of withholding the location, equipment and techniques used by law enforcement as detailed in United States v. Green, 670 F2d 1148 (D.C. Cir. 1981 ). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the Department to redact responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Brittney Kraus SPR23/1154 Page 4 June 2, 2023 Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee