Donovan Lee v. Somerville, City of - Police Department (SPR 20231366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2023 SPR23/1366 Lori L. Cook Records Clerk Somerville Police Department 220 Washington Street Somerville, MA 02143 Dear Ms. Cook I have received the petition of Donovan Lee, appealing the response of the Somerville 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 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. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0742 Determination of the Supervisor of Records (April 27, 2023). In my April 27th determination, I closed the appeal after the Department indicated that it would provide a further response. On April 28, 2023, the Department provided a response addressing a part of Item two of the request. The Department provided responsive records and maintained their previous arguments to withhold responsive records pursuant to Exemption (n) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR23/1366, was opened as a result. Current Appeal On April 28, 2023, the Department provided responsive records to a part of item two of the request without redactions. In his current appeal, Mr. Lee claims in the Department’s prior responses on April 21, 2023, and April 26, 2023, were insufficient. Mr. Lee claims that the Department did not meet its burden to withhold and redact responsive records to parts 1 and 2 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

Lori L. Cook SPR23/1366 Page 2 July 5, 2023 the request pursuant to Exemption (n). The Department’s April 21st April 26th and April 28th responses In its previous April 21, 2023 response, the Department cited Exemption (n) to withhold responsive records to Item one of the request. In its April 26, 2023 response, the Department cited Exemption (n) to redact responsive records to Item two of the request. In its April 28, 2023 response, the Department provided records responsive to a portion of Item 2 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 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id.

Lori L. Cook SPR23/1366 Page 3 July 5, 2023 In the Department’s response, it states, “[a]s to item number 1, in which you requested: ‘Any and all weapons inventory lists maintained by the department, to include all ‘less Lethal’ weapons, that are owned or authorized by the department,’ the [Department] is denying your request pursuant to G.L. c. 4, § 7, cl. 26(n).” In the Department’s April 26, 2023, response it provided a firearm qualifications log with redactions and stated, “[t]he serial numbers of each weapons was redacted pursuant to exemption (n) of the Massachusetts Public Records Law. It is in the [Department’s] judgement that release of the serial number would undermine public safety.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the Department to withhold responsive records to Item one of the request and to redact responsive records to Item two of the request, 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Lori L. Cook SPR23/1366 Page 4 July 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee