Donovan Lee v. Northampton, City of - Police Department (SPR 20232243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2023 SPR23/2243 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1126 Determination of the Supervisor of Records (June 13, 2023). In my June 13th determination, I ordered the Department to provide Mr. Lee with a response to his request. On June 28, 2023, the Department responded and stated that it was continuing to withhold 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). Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR23/2243, 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). 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 SPR23/2243 Page 2 October 4, 2023 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. 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 June 28th Response In its June 28, 2023 response, in regard to Request # 2, the Department stated that it “provided copies of the training logs for firearms and less lethal weapon qualifications and re- qualifications for the past two years, with redacted serial numbers.” 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: In this response the Northampton police department still refuses the release requested record to me, namely 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 Northampton police department is still claiming that the records requested are exempt under Exemption n of public records law. I believe that the department has still not met the requirements to withhold the above referenced records under exemption n. Based on Mr. Lee’s appeal, it appears he is objecting to the Department’s Exemption (n) claim to withhold the responsive records from disclosure. 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

Julie Gaudreau SPR23/2243 Page 3 October 4, 2023 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. 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: We believe emphasis in this case should be put on the words “but not limited to” as well as “any other records.” While “weapons inventory list” is not in the language of the exemption, it is exactly the kind of information that Exemption (n) was created to protect from disclosure; it falls under the categories of security measures, emergency preparedness, and threat or vulnerability assessments. See PETA 477 Mass. 280 (2017) 289-90. It directly satisfies the first prong of the test as it related to security measures, as weapons owned and maintained by the Department are part of its security program and relate to the security and safety of the City’s persons, buildings, structures, and facilities. Obviously, a terrorist would find a weapons inventory list maintained by a law enforcement agency useful to maximize damage. A terrorist would utilize the knowledge of how many and what types of firearms we possess to aid them in planning an attack on our Department or in our City; they would know what kind of response to expect, and have time to create a plan regarding how to counter it. The requested information also satisfies the second prong of the test in that revealing a list of weapons owned and maintained by this Department would be likely to jeopardize public safety. An inventory of every weapon owned by the Department is reasonably likely to endanger public safety activities, as it would permit criminal actors a tactical advantage in confrontations with police forces. This withholding 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.) See also Hicks v. United States, 431 A.2d 18 (D.C.

Julie Gaudreau SPR23/2243 Page 4 October 4, 2023 1981.) In our reasonable judgment, a reasonable person would agree given the context of this particular case that Exemption (n) applies to this particular request. Based on the foregoing, the Northampton Police Department maintains its position that the requested records are exempt from disclosure under Exemptions (b), (f), and (n). In our previous response to this request, we cited the decision by the Supervisor of Public Records in August, 2016 (SPR150544) upholding 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 the 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.” While this decision was rendered before the exemption was updated in 2017, we argue that the law hasn’t changed to such a degree that decisions rendered prior to 2017 cannot be discounted out of hand. To that end, see also SPR140554. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the Department to withhold records responsive to Request # 1, 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

Julie Gaudreau SPR23/2243 Page 5 October 4, 2023 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 Request # 1 for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee