Donovan Lee v. Longmeadow, Town of - Police Department (SPR 20232505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2023 SPR23/2505 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 Appeals The requested records were the subject of a prior appeal. See SPR23/0629 Determination of the Supervisor of Records (April 18, 2023) and SPR23/1154 Determinations of the Supervisor of Records (June 2, 2023; July 6, 2023). In my July 6th determination, I learned that the Department intended on providing a further response to Mr. Lee and closed the appeal. On July 26, 2023, the Department provided a further response which included responsive records with redactions for Item 1 of the request. Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR23/2505, 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

Brittney Kraus SPR23/2505 Page 2 November 6, 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. The Department’s July 26th response and October 25th response In its July 26, 2023 response, the Department provided responsive records for Item 1 of the request with redactions. In a further response provided to this office on October 25, 2023, the Department stated that the redactions made to records responsive to Item 1 of the request were made pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). The Department also indicated that it was withholding responsive records to Item 2 of the request pursuant to Exemptions (b) and (j) of the Public Records Law. G. L. c. 4, § 7(26)(b), (j). Item 1 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). 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

Brittney Kraus SPR23/2505 Page 3 November 6, 2023 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). Regarding Exemption (b), the Department stated the following: However, citing Exemption B, “proper performance of necessary governmental functions” requires that we withhold certain information to avoid compromising our efforts to maintain public safety. Especially in light of recent events worldwide, concerns over homegrown terrorism and acts of violence on the local level are possible. Disclosure of this information could prove detrimental to the Longmeadow Police Department’s law enforcement efforts. Releasing the inventory list of weapons and the proficiency of our responding officers would likely jeopardize public safety. Someone with nefarious intentions having access to these inventory lists would grant them knowledge of the capability and limitations of the ammunition, protective equipment, vehicles, and other law enforcement equipment in use by this Department. When criminals and/or terrorists have direct knowledge pertaining to the equipment listed above, it provides a tactical advantage to those individuals, which would hinder the ability of the Department to prevent and deter crime and maintain the public’s safety. Regarding Item 1, the Department has not demonstrated that the redacted records are solely related to internal personnel rules and practices of the government unit. The Department must clarify this matter. Item 2 Regarding Item 2, it is unclear why the Department has cited Exemptions (b) and (j) of the Public Records Law to withhold the records, when it appears the Department previously provided the responsive records on May 3, 2023. The Department must clarify this. 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 the response to this office at pre@sec.state.ma.us. Mr. Lee may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Brittney Kraus SPR23/2505 Page 4 November 6, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Donovan Lee