Blue POV v. Salem, City of - Police Department (SPR 20240131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2024 SPR24/0131 Ann Marie Greene Principal Clerk Support Services - Records Division Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Blue POV appealing the response of the Salem 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 September 6, 2023, the requestor sought the following: 1. All body cam footage of arresting officer for the arrest of [a named individual] arrested on 10/16/22 for A&B on police officer, a&b with dangerous weapon, vandalize property, resist arrest and disorderly conduct. Incident Number 2200020719 (correct case is actually 22-29538); including all police reports and or 911 or non emergency calls from incident. 2. All body cam footage of arresting officer for the arrest of [a second individual] arrested on 10/08/22 for disorderly conduct, accost/annoy another person and resist arrest. Incident Number 2200028542: including all police reports and or 911 or non emergency calls from incident. 3. All body cam footage of arresting officer for the arrest of [a third individual] arrested on 10/29/22 for A&B, destruction of property malicious and disorderly conduct. Incident Number 2200031387; including all police reports and or 911 or non emergency calls from incident. Previous Appeal This request was the subject of a previous appeal. See SPR23/2461 Determination of the Supervisor of Records (October 31, 2023). In my October 31st determination, I ordered the Department to revise its fee estimate or provide further explanation of how the fees are consistent with the Public Records Law. Following further correspondence between the Department and the requestor, I understand the requestor paid the fees and the Department 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

Ann Marie Greene SPR24/0131 Page 2 January 30, 2024 provided numerous responsive records in redacted form. In a January 10, 2024 response, the Department cites Exemption (n) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(n). 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); 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. Current Appeal In the appeal petition, the requestor contends “that the first part of this complaint was unlawfully redacted to stop the public from seeing the treatment of a woman in their custody, and the second part is they unlawfully redacted a face and failed to complete the request by sending 4 of 5 videos they quoted to charge a fee for.” The requestor also contends that “not only did they redact a face I don’t believe is covered under records request law due to the public interest of these type of incidents, but they failed to turn over the actual arrest of [an identified individual]. In the ‘fee estimate’ they quoted 5 videos for 3 separate incidents, that totaled 3.56 hours of time, and only 1.5 of those hours were chargeable. I only received 4 videos in total.” The Department’s January 10th Response In its January 10, 2024 response, the Department cites Exemption (n) of the Public Records law for redacting responsive videos. See G. L. c. 4, § 7(26)(n). Exemption (n) Exemption (n) applies to:

Ann Marie Greene SPR24/0131 Page 3 January 30, 2024 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. 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. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its January 10th response, under Exemption (n), the Department argues the following: Those redactions were made to the ‘arrest’ BWC video . . . per G. L. c. 4, § 7 (26)(n). Further these redactions were to ensure that the security/safety is not compromised (for civilians and officers) by showing the internal schematics/ layout of the Salem Police Department building as well as entry used to restricted areas that are not public. The redactions done were all inside the Salem Police Department during the transport of the arrestee (from vehicle to building), intake/ processing of the arrested prisoner as well as the other ‘security measures’ and protocol taken by the arresting officer and other support staff/officers (that if specifically named and or divulged would comprise the safety/security) within the building of the Salem Police Department during this ‘arrest’ process that is not within view or open to the public within these restricted areas.

Ann Marie Greene SPR24/0131 Page 4 January 30, 2024 Based on the Department’s response, it is unclear how the redacted portions of the video resemble the records listed under Exemption (n). See PETA, at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the Department has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Department must clarify these matters. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Department’s response, it is unclear which exemption the Department is citing in order to redact portions of the responsive videos. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Specifically, the Department must clarify which exemption of the Public Records Law it is citing in order to redact faces and other portions of the videos. Records in Existence The Department is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in the requestor’s appeal petition, and in the Department’s previous September 20, 2023 and October 13, 2023 fee estimates, it is unclear whether the Department possesses additional records responsive to the request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided 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.

Ann Marie Greene SPR24/0131 Page 5 January 30, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Blue POV