Joshua Kornfeld v. Boston, City of - Police Department (SPR 20250258)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0258 Grace Jung Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Joshua Kornfeld appealing the response of the Boston 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 December 23, 2024, Mr. Kornfeld requested “copies of any agency specific training materials officers may undergo in investigating hate crimes.” The Department responded on January 28, 2025, and assigned reference number B003660-122324 to this request. Unsatisfied with the Department’s response, Mr. Kornfeld petitioned this office, and this appeal, SPR25/0258, 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 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

Grace Jung SPR25/0258 Page 2 February 10, 2025 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 January 28th Response In its January 28, 2025 response, the Department cites Exemption (n) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(n). 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 January 28th response, under Exemption (n), the Department argues the following:

Grace Jung SPR25/0258 Page 3 February 10, 2025 The Department reasonably believes that releasing records of training materials used in investigating hate crimes is likely to jeopardize public safety and is protected under Exemption (n). In reaching the determination that public safety would be at risk by the release of these records, the Department analyzed the record using the two prong test established in People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res. . . . Training materials are part of plans, policies, procedures and point to security measures that relate to the security and safety of persons, buildings, and infrastructure. Also, the information, policies, and procedures contained in training materials is based upon threat and vulnerability assessments. A terrorist would find information contained in training materials of use to maximize damage because the record contains information concerning police deployment, staffing levels, responses, and policies. The records sought resemble the records enumerated in Exemption (n). Having information about training would be useful information for a terrorist to maximize damage because a terrorist could use this information to coordinate and plan an attack. The Department determines its training based upon its expertise in public safety, gathering intelligence, and data. Disclosing this information would cause serious risk to public safety because terrorists wishing to maximize damage use this information to avoid safety measures put in place. Release of this information would be of use to terrorists in maximizing damage because the information would allow terrorists to analyze staffing patterns and public safety measures and plan attacks based upon staffing levels, deployment information, and procedures that are put in place. Because release of these records would be useful to a terrorist to maximize damage the first prong of the test is satisfied. The second part of the analysis requires the Department to exercise reasonable judgment that disclosure of the records jeopardizes public safety. In determining reasonableness, the custodian must provide factual support that disclosure of the record is likely to jeopardize public safety. Because roll call sheets are part of plans, policies, and procedures that relate to the security and safety of persons, buildings, and infrastructure, it is reasonable for the Department to withhold these records to protect public safety. Training materials would show public safety procedures and methods to a terrorist and such information would be of use to maximize damage. Training materials would be of use in maximizing damage because such information would allow terrorists to evaluate Department assignment patterns, staffing levels, and protocols by location and time periods. Releasing training materials would provide access to Department plans that relate to the safety and security of persons, buildings, and infrastructure. By looking at the express language of the statute, the requested records are the records that Exemption (n) seeks to protect from disclosure. G. L. c. 4, § 7(26)(n). Because training materials are records contemplated by Exemption (n) and are of use to a terrorist to maximize damage, the Department in exercising its reasonable judgment has determined that disclosure of the requested records is likely to

Grace Jung SPR25/0258 Page 4 February 10, 2025 jeopardize public safety. See PETA. For the foregoing reasons, this request is denied. Based on the Department’s response, it is unclear how the requested “training materials” for “investigating hate crimes” resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how training materials 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. Further, the Department has not demonstrated how the records can be withheld in their entirety. In particular, it is uncertain why the records cannot be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Kornfeld 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: Joshua Kornfeld