Jonathan Gerhardson v. University of Massachusetts Amherst - Police Department (SPR 20250273)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2025 SPR25/0273 Ian P. Cyr Deputy Chief University of Massachusetts Police Department 585 East Pleasant Street Amherst, MA 01003 Dear Deputy Chief Cyr: I have received the petition of Jonathan Gerhardson appealing the response of the University of Massachusetts 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 January 17, 2025, Mr. Gerhardson requested, “a copy of a UMPD plan which is referenced in the report.” On January 29, 2025, the Department provided a response, withholding the responsive record under Exemption (n) of the Public Records Law. Unsatisfied with the response, Mr. Gerhardson petitioned this office and this appeal, SPR25/0273, 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

Ian P. Cyr SPR25/0273 Page 2 February 6, 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. Current Appeal In his appeal, Mr. Gerhardson states, “as described in the Prince-Nobel report released by UMass, it is not even clear that the requested record is an active policy as Mr. Cyr describes it, but one specifically related to an event seven months ago. In either case, I do not believe that UMPD can legally withhold this document entirely.” The Department’s January 29th Response In its January 29, 2025 response, the Department cited Exemption (n) of the Public Records Law to withhold the responsive record. 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.

Ian P. Cyr SPR25/0273 Page 3 February 6, 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 29, 2025 response, the Department states: The record requested is an ‘Operations Plan’ developed by the UMPD and it contains specific information related to the effective deployment of police and medical resources to a protest demonstration. This information describes the operational objectives, staffing, intelligence gathering processes, equipment, staging and deployment locations of police and medical personnel, and the medical and tactical plans of those resources to include perimeter locations and traffic control points. These security measures are specifically designed to support the safe, and effective response to this specific situation and ensures that the university maintain its public safety and emergency preparedness posture. The requested document resembles the records listed as examples in the statute, and the requested document meets the first prong of Exemption (n) as the requested document is defined under the law as a plan, or procedures which relate to security measures, emergency preparedness, threat or vulnerability assessments, relating to the security or safety of persons or buildings, structures. Furthermore, the disclosure of the document undermines public safety as it relates to security measures and emergency preparedness. The information in the document details how police and medical responders are addressing matters of public safety, and providing security for all of those persons involved. The disclosure of this information could be used by someone with intent to inflict harm against those participants, and responders. It was only three weeks ago where a lone individual, with terrorist intent, usurped security protocols to use a vehicle to ram into a pedestrian filled street, killing and injuring numerous people. Although portions of the record may fall under Exemption (n), it is unclear why the record may be withheld in its entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify whether segregable portions can be provided. Conclusion Accordingly, the Department is ordered to provide Mr. Gerhardson 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

Ian P. Cyr SPR25/0273 Page 4 February 6, 2025 pre@sec.state.ma.us. Mr. Gerhardson may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson