Jon Gerhardson v. Chicopee, City of - Police Department (SPR 20252703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2025 SPR25/2703 Officer Berit Bjerkadal Records Access Officer Chicopee Police Department 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 Appeals This request was the subject of previous appeals. See SPR25/2224 Determination of the Supervisor of Records (August 12, 2025) and SPR25/2370 Determination of the Supervisor of Records (August 27, 2025). In my August 27th determination, I found that the Department had met its burden in responding to Item 2 of the request, but ordered the Department to clarify its claims for withholding records responsive to Item 1 of the request. Subsequently, the Department responded on September 11, 2025. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR25/2703, 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 SPR25/2703 Page 2 September 25, 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 September 11th Response In its September 11, 2025 response, the Department explains that “the Chicopee Police Department intends to withhold the names of the officers involved in the arrest on July 17th, hereafter referred to as the undercover officers. Along with [its response], the department will be providing the agency assignment and badge numbers of the undercover officers to Mr. Gerhardson.” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity

Officer Berit Bjerkadal SPR25/2703 Page 3 September 25, 2025 of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. In its September 11th response, under Exemption (f), the Department argues the following: Exemption (f) allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. It is the department’s position that the names of the undercover officers is information that is inextricably linked to their undercover status. “Undercover” is not just a job description or a neural fact. [sic] It is an investigative material in the sense that a covert identity is a constructed tool used by officers to infiltrate criminal organizations. The undercover status of undercover officers is the foundation upon which the entire investigation rests. The undercover officer is only able to penetrate criminal organizations by utilizing a false identity as a technique to subvert the actions of dangerous criminals. The core purpose of exemption (f) is to prevent the public release of information that could jeopardize current or future law enforcement operations. . . . As undercover narcotics officers, the undercover officers are regularly and continuously engaging in undercover activities as part of numerous on-going investigations throughout Chicopee and Hampden County. Disclosing their identities would alert the suspects of their current investigations of a police presence, prompting potential harm to officers or associated civilian criminal informants, destruction of evidence, and loss of critical investigative information. Disclosure compromises the investigative efforts of the Chicopee Police Narcotics Unit endangering the apprehension and prosecution of dangerous criminals jeopardizing the safety of the public. Based on the information provided in its September 11th response, I find that the Department may properly claim Exemption (f) of the Public Records Law to withhold the names of the undercover police officers.

Officer Berit Bjerkadal SPR25/2703 Page 4 September 25, 2025 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 September 11th response, under Exemption (n), the Department argues the following: [T]he type of record that falls under this exemption is fairly broad by definition with the important distinction being whether disclosure is likely to jeopardize public safety. The examples provided in the text (blueprints, plans, policies, procedures, and schematic drawings) are just that, examples. The text is clear to point out that a record can be any of these things but does not have to be in order to fall under this exemption. Therefore, it is the opinion of the Chicopee Police

Officer Berit Bjerkadal SPR25/2703 Page 5 September 25, 2025 Department that a record containing the names of undercover officers constitutes a record that relates to the security or safety of persons, the disclosure of which is likely to jeopardize public safety. In the following paragraphs, the department will provide further reasoning for this stance. The Chicopee Police Department intends to withhold the names of the undercover officers under exemption (n) of the public record law. Exemption (n) is construed using the following two pronged approach. 1, whether, and to what degree, the record is one a terrorist would find useful to maximize damage, and in that sense jeopardize public safety. 2, 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 custodians determination given the context of the particular case. It is the position of the Chicopee Police Department that the names of the undercover officers is information that a terrorist would find useful to maximize damage. In the interest of clarity, a terrorist in this instance, is defined as a person who utilizes violence or force against persons or property to intimidate or coerce a government unit, the civilian population, or any segment thereof. Due to the undercover officers’ status as active members of the Chicopee Police Department’s Narcotics Unit, they regularly engage in plainclothes undercover work within the community. The duties of the undercover officers include assuming false identities, building trust with drug dealers and drug traffickers to gain access to crucial information, and recruiting and managing civilian confidential informants. If any of the individuals who are the subjects of active and on-going narcotics investigations, were to come across the true identities of the undercover officers, the risk of operation failure, critical information loss, and endangerment to life and limb is greatly increased. There have been several incidents historically where the identities of undercover officers revealed during the course of an investigation led to the deaths of the involved officers. Two such incidents were the murder of Officer Michael Ceriale in 1998 and the deaths of Detectives James Nemarin and Rodney Andrews in 2003.Michael Ceriale was an undercover officer working for the Chicago Police Department when he was fatally shot after being recognized as a police officer during a narcotics surveillance operation. James Nemarin and Rodney Andrew were members of the NYPD Firearms Investigation Unit working undercover when they were murdered by an illegal gun dealer after they were identified as police officers. In both cases the disclosure of the officers’ undercover status resulted in violence, death, and compromised investigations. The consequences of a compromised investigation has far reaching implications extending beyond the immediate failure of a singular operation. The undercover officers work to serve a larger strategic goal of dismantling organized crime within the city of Chicopee and

Officer Berit Bjerkadal SPR25/2703 Page 6 September 25, 2025 Hampden County. Their work is essential for gaining intelligence that cannot be obtained through conventional policing methods in order to infiltrate criminal organizations to secure convictions against dangerous criminals. Disclosing their names to Mr. Gerhardson, a freelance journalist who has a documented history of publishing information obtained via records requests from the Chicopee Police Department, presents a substantial risk to the undercover officers, their families, and the greater public they strive to serve. In this case, where the Department has met its burden to withhold the requested information under Exemption (f), I find it is unnecessary to address the Department’s claims for withholding the information under Exemption (n). Records in Existence; No Duty to Create Records In his appeal petition, Mr. Gerhardson argues that “it is hard to believe that nowhere in the entire police department is there a written record of these officers employment status, assignment, or badge number.” He goes on to ask “that SPR will order CPD to release the requested names in compliance with the public records law.” 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 its response, the Department explains the following: [I]t is the opinion of the department that the requested records (i.e. the names, agency assignments, and badge numbers of the undercover officers) cannot be redacted so that segregable portions can be provided to Mr. Gerhardson. As the department is not in possession of a physical document that contains the requested information specifically, the information would be provided in writing via email, therefore there would be nothing to redact. Again to clarify . . . the department is now providing the agency assignments and badge numbers but withholding the names of the undercover officers. The Department further states the following: [T]he Chicopee Police Department is providing the agency assignment and badge numbers of the officers involved in the July 17th arrest per [Mr. Gerhardson’s] original request. The Chicopee Police Department is not providing the names of the undercover officers. . . .

Officer Berit Bjerkadal SPR25/2703 Page 7 September 25, 2025 Undercover Officer 1 Agency Assignment: Narcotics Badge Number: 25 Undercover Officer 2 Agency Assignment: Narcotics Badge Number: 48. In this case, where the Department has confirmed that it does not possess a record responsive to Item 1 of Mr. Gerhardson’s request, but has assisted him by providing information including the badge number and agency assignments that he seeks, I find the Department has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gerhardson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares 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: Jonathan Gerhardson