Danielle Makosky v. Department of State Police (SPR 20250265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0265 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Danielle Makosky appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 14, 2024, Ms. Makosky requested “any and all internal affairs documents regarding [an identified trooper].” Previous Appeals This request was the subject of previous appeals. See SPR24/3311 Determination of the Supervisor of Records (December 18, 2024), SPR24/3397 Determination of the Supervisor of Records (January 7, 2025) and SPR25/0071 Determination of the Supervisor of Records (January 21, 2025). In my January 21st determination, I found that the Department needed to clarify whether it possessed additional body cam video or dash cam videos, and whether it had redacted the two body cam video footage already provided. The Department responded on January 28, 2025. Unsatisfied with the Department’s response, Ms. Makosky appealed, and this case, SPR25/0265, 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 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

Allison Mondello SPR25/0265 Page 2 February 10, 2025 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 January 28th Response In its January 28, 2025 response, the Department cites Exemption (n) of the Public Records Law to redact the responsive records provided. Exemption (n) Exemption (n) permits the withholding of: 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.” PETA, 477 Mass. at 289-90. 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 “[because 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.

Allison Mondello SPR25/0265 Page 3 February 10, 2025 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 28, 2025 response, the Department states: … the cruiser that Trooper … was operating on September 14, 2024, was not equipped with a Cruiser-Mounted Camera (dash camera). The cruiser, #283, was recently placed into service and had not yet been upfitted with a Cruiser-Mounted Camera. Therefore, out of courtesy because the Department could not provide any responsive CMC videos, you were provided with two (2) Body-Worn Camera videos. In regard to the redaction(s) administered to obscure the computer screen in the Body-Worn Camera Video(s), the Department applied the redactions to the computer screen in its entirety under exemption (n). … The Department has determined that the requested records relate to security and safety of persons and would reveal security measures and threat preparedness that a terrorist would find useful to maximize damage and, therefore, their release would likely jeopardize public safety. Given that the assignments themselves are intertwined with public safety concerns, the Department must be circumspect in the level of factual detail it can provide to justify its determination. In this instance, the information requested would reveal sensitive security information or the total number of staff assigned to a barracks, and their assigned patrols, as well as the total number of staff available to respond to a particular event and/or within a specific geographic area. The Department asserts that such staffing data is related to its overall security plan and disclosure would not be in the public interest. An individual who sought to maximize damage to persons in the Commonwealth would find this information useful insofar as it would provide that individual with detail about, and insight into, the way the Department undertakes to protect and secure persons and buildings within the Commonwealth, including preparation, planning, patterns, and personnel. Accordingly, in the reasonable judgment of the Department, disclosure of the withheld information would be likely to jeopardize public safety…. Based on the Department’s response, I find that the Department has met its burden to redact the responsive records under Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Makosky is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Allison Mondello SPR25/0265 Page 4 February 10, 2025 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: Danielle Makosky