Blue POV v. Salem, City of - Police Department (SPR 20241100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2024 SPR24/1100 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 (“requestor”) 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 Appeals This request was the subject of previous appeals. See SPR23/2461 Determination of the Supervisor of Records (October 31, 2023) and SPR23/0131 Determination of the Supervisor of Records (January 30, 2024). In my January 30th determination, I ordered the Department to clarify its claims under Exemption (n) for redacting portions of the responsive video. Subsequently, the Department responded on February 14, 2024. Unsatisfied with the 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 SPR24/1100 Page 2 April 29, 2024 Department’s response, the requestor further appealed, and this case 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 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. The Department’s February 14th Response In its February 14, 2024 response, the Department cites Exemptions (a), (b), and (n) of the Public Records Law for redacting the responsive video. See G. L. c. 4, § 7(26)(a), (b), (n). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be

Ann Marie Greene SPR24/1100 Page 3 April 29, 2024 subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 41, § 97D In its response, the Department cites G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 G. L. c. 41, § 97D. In its February 14th response, under Exemption (a) and G. L. c. 41, § 97D, the Department argues the following: There was a face of a woman that was redacted who was deemed to be a victim during the course of investigation during questioning by the officers. While this questioning did take place in a public setting (as she approached officers to speak with them while out in the field) she reported an incident that she was involved in that was sensitive in nature.... Her communication of information, assisted officers in the investigation of this case and is the intention of this statute (ie to encourage persons that are deemed to be victims that are sexual in nature) to come forward while protecting their privacy... Based on the Department’s February 14th response, I find the Department has met its burden to redact the face and identifying information of a victim described above pursuant to

Ann Marie Greene SPR24/1100 Page 4 April 29, 2024 Exemption (a) and G. L. c. 41, § 97D. 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 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). In its February 14th response, under Exemption (b), the Department argues the following: While we had initially noted Exemption N to help clarify the redactions to this video ... We also are noting G.L.c.4 sec 7cl 26 (b) which applies to records and information that are related solely to internal personnel rules and practices of a government unit. As such this exemption allows for withholding the redacted information to the extent that to show (these views in the video) would hinder as well as risk proper performance of necessary functions of the Salem Police Department security protocol and emergency measures during the transfer of an arrestee and weapon securement in these restricted areas (the sallyport including entry to the ‘inner’ internal doorway).

Ann Marie Greene SPR24/1100 Page 5 April 29, 2024 . . . As communicated prior (and in further detail again [below]) the video(s) provided for distribution had these redactions to ‘maintain the proper performance of necessary functions’ specifically in respect to the internal workings/operations of these secured/restricted areas in the Salem Police Department as well as specific steps taken by officers for security protocols/measures to ensure the safety for all persons involved as well as other personnel/staff in the building. 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 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 February 14th response, under Exemption (n), the Department argues the following:

Ann Marie Greene SPR24/1100 Page 6 April 29, 2024 The redactions were done to the video distributed (reference 22-29538) to prevent ‘views’ of the following: 1. The ‘timed’ entry/exit ‘closure’ of the secured building (outer) door operations which does not serve any public interest though does put the secured area, detainee(s) as well as other personnel/ sworn and civilian at risk by showing information that could be utilized by someone with the purpose of wanting to gain entry to this secured/ restricted area for transport of prisoners and entry and access to inner doors of the Salem PD. 2. The protocols, ‘emergency readiness’ and safety measures taken by officers when securing their ‘service weapons’ in respect to prisoner transport while inside the Salem PD specifically required in these secured/restricted areas which again does not serve ‘public interest’ though does put the secured area, detainee(s) as well as other personnel/sworn and civilian at risk by showing information that could be utilized by someone to do harm through this knowledge of ‘tactical information’ regarding officer service weapons and emergency readiness. 3. How to access the ‘inner’ entry/doorway of the PD (and what is needed for operation to access) as the view shows the arresting officer and support officers when they breach and exit/enter through this doorway into the initial detainment area which again, the redacted information does not serve ‘public interest’ though does put the secured area, detainee(s) as well as other personnel/sworn and civilian at risk by showing these protocols and safety measures that are taken during entry/exit of this internal doorway. Based on the information provided in the Department’s February 14th response, I find the Department has met its burden to redact the portions of the responsive video described above pursuant to Exemption (n). Where the Department has met its burden to redact the records under Exemption (n), I decline to address the Department’s claims under Exemption (b). Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Blue POV