Katherine Pires v. Chicopee, City of - Police Department (SPR 20231368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2023 SPR23/1368 Mr. Anouson Souvannasane Records Access Officer Chicopee Police Department 110 Church Street Chicopee, MA 01020 Dear Mr. Souvannasane: I have received the petition of Katherine Pires appealing the response of the Chicopee 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 May 12, 2023, Ms. Pires states: [a]t the March [Public] Safety Meeting and at one of the Willimansett C3 unit community meetings I attended, both Chief Major and Sgt. Blankenship quoted law enforcement activities that were specific for the Willimansett area. I am requesting a calendar years’ worth of such information summarized by month, similar to the city wide information provided publicly on the [Department] Facebook at year end. Date Range: May 2022-April 2023: Reports taken; Arrests; Crashes; Calls for service; and Citations issued, divided by pedestrian vs. driver. I understand that, like the ward divisions, two police zones cover Willimansett. I am also requesting a copy of the zone/district overlay for the [C]ity. On May 22, 2023, the Department responded to Ms. Pires, “[u]nfortunately, the [Department] requires additional time beyond the 10 business days allotted under the law in order to respond to this request. The magnitude or difficulty of the request unduly burdens the other responsibilities of the [D]epartment. As a result, the [Department] is requesting an extension of 25 business days to produce the requested records that are in our possession.” Ms. Pires responded to the Department on May 22nd, “[t]hank you for letting me know and your time producing the records.” On June 7, 2023, the Department provided a response, informing Ms. Pires, “[a]ttached file contains a copy of the Willimansett stats from May 2022-Present. The Department intends to 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

Anouson Souvannasane SPR23/1368 Page 2 July 5, 2023 withhold [a copy] of the zone/district overlay for the [C]ity due to the applicability of [Exemptions (f) and (b)]…” As a result of the Department’s June 7th response, Ms. Pires petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor; reason for the request In Ms. Pires’ petition for this appeal, she indicates, “I requested a copy of the police district overlay map to help me understand where the specific division of the two police districts is while analyzing the criminal & law enforcement activity in the general area. I want to be clear my vested interest in understanding this area, [is personal to me].” Ms. Pires is advised, the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Pires’ purpose in making the request has no bearing on the public status of any existing responsive records. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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.

Anouson Souvannasane SPR23/1368 Page 3 July 5, 2023 The Department’s June 7, 2023 Response The Department’s June 7th response indicates that it is withholding the Department’s zone/district overlay for the [C]ity due to Exemptions (b) and (f) of the Public Records Law. 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 government 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 Retirement 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 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 asserts, “[b]oth Exemption (f) and Exemption (b) protects not only the investigative procedures used by the [Department] but their location while on duty which if released may be used by a criminal element to plan or engage in activities that may compromise officer and public safety. If the map of the district is known then the location of the responding units will be known when they are dispatched to that location.” In this case, the Department has not demonstrated that the zone/district overlays are internal personnel rule(s) and practices of the government unit. Additionally, the Department has not demonstrated that the zone/district overlays are Department policies or procedures that

Anouson Souvannasane SPR23/1368 Page 4 July 5, 2023 pertain to Department’s practice and policy. Therefore, I find the Department has not met its burden of specificity to withhold the responsive records 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 such that 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, 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 289-90. In its June 7th response, the Department merely stated, “[t]his exemption essentially covers three areas: 1. Ongoing investigations: Information that may alert suspects, or otherwise jeopardize an ongoing investigation, may be withheld; 2. Future investigations: Confidential investigative techniques may be withheld that would jeopardize future investigative efforts; and 3. Confidentiality: information may be withheld to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Accordingly, any details in witness statements, which if released create a grave risk of directly or indirectly a private citizen who volunteers as a witness are indefinitely exempt. Based on the Department’s response, it is unclear how the zone/district overlay map relates to an ongoing investigation, or contains confidential investigative techniques that would jeopardize future investigative efforts of the Department. Further, the Department did not demonstrate how disclosure of the responsive records “would probably so prejudice the

Anouson Souvannasane SPR23/1368 Page 5 July 5, 2023 possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Department must clarify these matters. The Department’s June 7th response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the requested record falls within Exemptions (b) and (f) of the Public Records Law. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Timeliness of Responding to a Public Records Request In addition, in her June 19th petition, Ms. Pires asserts, “[o]n May 22, 2023, the Records Access Officer requested an extension beyond the 10 days provided by law due to the burdensome nature of my request. I understood this extension because I assumed at least 12 separate extracts of data were required to satisfy my request. Instead on June 7, 2023, I was provided a single report of activity for the entire year that leaves me unable to analyze the information in a meaningful manner.” Ms. Pires is advised regarding the timeliness of the Department’s response, “records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein.” See G. L. c. 66, § 10(b)(vi). Whereas, Ms. Pires has also questioned whether she has been provided all the records and/or data responsive to her request, it is unclear whether the Department has this information broken-down into 12 separate extracts of data for the May 2022-April 2023 date range; instead of the single report of activity Ms. Pires received on June 7th. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Pires with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Ms. Pires may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Anouson Souvannasane SPR23/1368 Page 6 July 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Katherine Pires