Mason Kortz v. Longmeadow, Town of - Police Department (SPR 20243331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2024 SPR24/3331 Chief Robert Stocks Chief of Police Longmeadow Police Department 34 Williams Street Longmeadow, MA 01106 Dear Chief Stocks: I have received the petition of Attorney Mason Kortz, of the Harvard Law School Cyberlaw Clinic, on behalf of Donavan Lee, of The Shoestring, 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. Previous Appeals The requested records were the subject of previous appeals. See SPR23/0629 Determination of the Supervisor of Records (April 18, 2023); SPR23/1154 Determinations of the Supervisor of Records (June 2, 2023; July 6, 2023) and SPR23/2505 Determination of the Supervisor of Records (November 6, 2023). In my November 6th determination I ordered the Department to clarify its claims for redacting and withholding the responsive records. Subsequently, the Department responded on October 1, 2024. Unsatisfied with the Department’s response, Attorney Kortz petitioned this office, and this appeal, SPR24/3331, 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 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

Chief Robert Stocks SPR24/3331 Page 2 December 24, 2024 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 October 1st Response In its October 1, 2024 response, the Department states that it is withholding responsive records pursuant to Exemptions (b) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(b), (n). Additionally, the Office provides “a list of equipment Longmeadow Police Officers typically carry on their person or within their patrol vehicle during their respective tours of duty. These items are ordinarily visible to the public.” 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,

Chief Robert Stocks SPR24/3331 Page 3 December 24, 2024 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 October 1st response, under Exemption (b), the Department argues the following with regard to Item 2 of the request: Logs of each officer’s qualifications have been withheld based on EXEMPTION B of the Public Records Law. Release of the corresponding names and their proficiency records would identify the officers and their proficiency with specific weapons at identified distances and scenarios. Dissemination of this information would allow an advantage to someone who intended harm against a specific officer by analyzing their strengths and weaknesses, if applicable. Release of this information to the public would disclose our agency’s necessary personnel practices which would inhibit our function. This information is maintained for internal use only and it cannot be reasonably expected for public interest; this could prove detrimental to our law enforcement efforts. In this case, the Department has not demonstrated that the withheld records are solely related to internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of Departmental regulations and statutes. Therefore, the Department has not met its burden to withhold the responsive records under Exemption (b). 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).

Chief Robert Stocks SPR24/3331 Page 4 December 24, 2024 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 October 1st response, under Exemption (n), with regard to Item 1, the Department argues the following: The discretionary release of [the provided list] was decided after careful consideration of the countervailing argument of public interest; the protection of this information is essential to ensure our success in controlling criminal activity while protecting our citizens. While the Longmeadow Police Department maintains an inventory of equipment (lethal and less than lethal), we have withheld an itemized inventory citing EXEMPTION N which protects and insures the proper performance of necessary governmental functions. An itemized list of the equipment utilized by this department falls into the category of “security measures” and “emergency preparedness”. Other than what is plainly visible to the public (worn on the officer, stored in plain view in department vehicles, etc.), dissemination of specific, detailed information on the equipment utilized by the Longmeadow Police Department would jeopardize the safety of our officers and our community. Someone with nefarious intentions and/or suspected of criminal activity could gain knowledge and the ability to procure equipment to counter the Longmeadow Police Department’s efforts to safeguard our community, thereby jeopardizing public safety. As affirmed in previous public records appeals, specifically SPR15/44, the Supervisor of Public Records has held an agency can withhold certain records, which if released, would undermine public safety. The Longmeadow Police Dept., in our reasonable judgment, strongly believes releasing an inventory and/or technical specifications of weapons we have would undermine public safety as it

Chief Robert Stocks SPR24/3331 Page 5 December 24, 2024 relates to security measures and emergency preparedness. With regard to Item 2 of the request, the Department explains the following: Additionally, we are citing EXEMPTION N which protects the proper performance of necessary governmental functions. Disclosing the proficiency of our officers would undermine public safety as it relates to security measures and emergency preparedness. Per MPTC and POST, to maintain state certification, all police officers must maintain a passing score and proficiency in firearms and electronic control weapons. An inquiry into an officer’s or department’s qualification logs raises concern over the intent behind the request. This information could be utilized to target certain officers, shifts, etc. and undermine and jeopardize public safety. In its response, the Department refers to a previous determination letter issued by the Supervisor of Public Records in 2015. Please note that determination letter was issued prior to the Supreme Judicial Court’s 2017 ruling in PETA, discussed above. Based on the Department’s response, it is unclear how the requested records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Department did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Lee with a response to his 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.

Chief Robert Stocks SPR24/3331 Page 6 December 24, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Mason Kortz, Esq.