Jonathan Gerhardson v. Chicopee, City of - Police Department (SPR 20243125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3125 Officer Anouson Souvannasane Chicopee Police Department Records Access Officer 110 Church Street Chicopee, MA 01020 Dear Officer Souvannasane: I have received the petition of Jonathan Gerhardson 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 November 10, 2024, Mr. Gerhardson requested the following: [1] User manuals, technical documentation, memos, communications, and related documents that pertain to the new residential camera sharing program with the Real Time Crime Center. [2] User manuals and technical documentation for software provided by Briefcam, Sound Thinking, and any vendors that supports camera registration and integration through connectchicopee.org/. [3] Contracts and data use policies between Chicopee, the Real Time Crime Center, or other LE entities and the above referenced vendors. In a modification to his request on the same day, Mr. Gerhardson also requested “in [the] search for documentation from or about vendors, Axon Fusus along with Briefcam and Sound Thinking.” The Department responded on November 18, 2024. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/3125, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response to Mr. Gerhardson on November 19, 2024. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR24/3125 Page 2 December 3, 2024 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 his appeal petition, Mr. Gerhardson argues the following: Notably, there are no communications such as emails, or technical documentation included in the materials provided, which seem primarily to be public-facing documents. The records I believe have not been provided, I also believe must exist because why would the Police Chief pitche [sic] the Mayor on some fancy new crime center software without a.)at least first talking to the sales rep from the company that makes it b.) ... understanding how it works in detail? Additionally, in an email to this office subsequent to the opening of this appeal, Mr. Gerhardson further argues the following: The identified records are vendor technical documents, which I am being told to try to acquire from the vendor directly. Respectfully, I believe these are responsive documents that must be provided by Chicopee under the records law, as an agency relationship has been created. As evidence of this see attached screenshot from Axon, which is signed “Chicopee Police Department.” Despite this, no contracts between the PD and vendor(s) have been provided or identified, yet must exist if a vendor is sending emails signed as the Chicopee Police Department. Additionally, the PD has not addressed my request for communications. The Department’s November 18th and 19th Responses In its November 18, and November 19, 2024 responses, the Department provides numerous responsive records.

Anouson Souvannasane SPR24/3125 Page 3 December 3, 2024 Agency Relationship 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In its November 19th response, the Department explains the following: In response to your request for records related to Fusus by Axon: User manuals and technical documentation is all online through their web-based platform and not something we can export or print. Please contact this vendor directly for those records. In this case, where it appears that an outside vendor may be acting as an agent on behalf of the Department, it is unclear whether the records for the Department’s agents were searched. As such, I find that the Department must provide additional information detailing its search in order to determine if the Department has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Further, based on the information provided in the Department’s responses and information in Mr. Gerhardson’s appeal petition, it is unclear whether the Department possesses additional records responsive to Mr. Gerhardson’s request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”).

Anouson Souvannasane SPR24/3125 Page 4 December 3, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Gerhardson 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. Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson