Jon Gerhardson v. Chicopee, City of - Police Department (SPR 20252370)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2025 SPR25/2370 Officer Berit Bjerkadal Records Access Officer Chicopee Police Department Bureau of Services 110 Church Street Chicopee, MA 01020 Dear Officer Bjerkadal: 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 July 18, 2025, Mr. Gerhardson requested the following: [1.] [R]ecords showing the names, badge numbers, agency, assignment, etc. for two officers that made an arrest at 878 Chicopee Street on July 17 approximately 6:55 p.m. They drove an unmarked Ford interceptor with civilian plates. . . [2.] I am seeking vehicle camera (dash, etc) footage for this car and dash camera footage for both officers, who I am told are Chicopee pd. the [sic] For a period of 5:55 p.m to 7:55 p.m. please provide as uncompressed .MP4 files with all metadata be that metadata “baked in” to the file or exists as a sidecar (XML, Json, etc.)[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/2224 Determination of the Supervisor of Records (August 12, 2025). In my August 12th determination, I closed SPR25/2224 in light of the Department providing a supplemental response to Mr. Gerhardson on August 12, 2025. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR25/2224, was opened as a result. 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

Officer Berit Bjerkadal SPR25/2370 Page 2 August 27, 2025 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 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 July 28th and August 12th Responses In its July 28, 2025 and August 12, 2025 responses, the Department states that it does not possess records responsive to Item 1 of the request, and cites Exemption (n) of the Public Records Law for withholding records responsive to Item 2. See G. L. c. 4, § 7(26)(n). Records in Existence; No Duty to Answer Questions, Create Documents Please be 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, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). In his appeal petition, Mr. Gerhardson argues the following: Regarding dashcam footage for the vehicle identified, CPD claims there are no records because this vehicle was not outfitted with such a device. Considering the fact that CPD does employ dash and body cams, including body cameras purchased this year with a $250,000 grant from the state, I believe it should have the burden to provide records sufficient to prove that no devices described in my request were outfitted to the vehicle described.

Officer Berit Bjerkadal SPR25/2370 Page 3 August 27, 2025 In its July 28th response, the Department explains the following: In regards to the second part of your request in which you requested vehicle dashboard camera footage from both officers, the Chicopee Police Department is unable to process your request. The Chicopee Police Department only has vehicle dashboard cameras installed on select vehicles in the fleet, of which the involved vehicle are not included. For this reason the Chicopee Police Department does not have possession, custody, or control of any such record and is not required by law to create one upon request. Where the Department has confirmed that it does not possess records responsive to Item 2 of the request, and the Department has no duty to create records, I find that the Department has met its burden in responding to Item 2 of the request under the Public Records Law. 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.

Officer Berit Bjerkadal SPR25/2370 Page 4 August 27, 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 July 28th response, regarding Item 1 of the request, under Exemption (n), the Department argues the following: It is the position of the Chicopee Police Department that the name, badge number and department assignment of the involved officers is information that a terrorist would find useful to maximize damage as they are members of a specialized unit that regularly engages in undercover work for the department. A terrorist is defined as a person who utilizes violence or force against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof. If a terrorist, or more specifically, an individual who might be the subject of such undercover work were to come across this information after it was released publically, the information could be used to target the officers and/or their families directly or indirectly. A terrorist could use this information to identify the home addresses and/or other confidential information of undercover officers for the purposes of perpetrating violence against them in an effort to intimidate said officers and/or coerce them into actions that are contrary to public safety. In its August 12th response, the Department further argues the following: Regarding our postulation that the names, badge numbers, and agency assignments of the involved officers are exempt from disclosure under exemption (n), it is the position of the Chicopee Police Department that this is information that a terrorist would find useful to maximize damage and jeopardize public safety. As stated in our letter to Mr. Gerhardson, the involved officers are active members of a specialized unit that regularly engages in undercover work for the department. It is our assertion that a terrorist with access to this information would certainly use it to target the officers and/or their families in an effort to perpetrate violence against them to intimidate and/or coerce them into actions contrary to public safety. Additionally, previous Supervisor of Records, Shawn Williams, stated in his determination of Todd Wallack’s petition appealing the Tewksbury Police Department’s response to the request for the official department photographs of two named officers that “disclosure of photographs of the Department’s officers is not likely to jeopardize public safety, unless the specifically identified officers provide undercover work for the department.” Using this logic, it stands to reason that the names, badge numbers, and agency assignment of the involved officers would also fall under this provision as this information would identify the officers in the same way a photograph of them would.

Officer Berit Bjerkadal SPR25/2370 Page 5 August 27, 2025 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. 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 in their entirety, pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of segregable portions of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. Further, it is unclear from the Department’s responses which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (n). 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”). It is further uncertain why the records must be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, 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. 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. Mr. Gerhardson may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson