More Stingray secrecy. MuckRock has been tangling with Boston’s police department for several months over the release of Stingray-related documents. So far, the BPD has managed to keep these out of MuckRock’s hands.

The first response it offered when denying Mike Katz-Lacabe’s request was filled with boilerplate and nearly nonsensical legalese.

The information you have requested is exempt from disclosure by MGL c. 4s. 7(26)(f) and (n). Disclosure of the information contained in these documents would not be in the public interest and would prejudice the possibility of effective law enforcement. More specifically, the protection of such investigatory materials and reports is essential to ensure that the Department can continue to effectively monitor and control criminal activity and thus protect the safety of private citizens.

There’s a healthy debate to be had about whether Stingray surveillance is in “the public interest,” but that debate necessarily includes the public, and the denial of this request cuts the public out of the loop. Arbitrarily deciding whether or not a document is in the “public interest” shouldn’t be left entirely in the hands of the agency seeking to withhold information — any “prejudicing” of “possibly effective law enforcement” notwithstanding.

MuckRock appealed this decision. The state stepped in and told the Boston PD that it couldn’t just issue boilerplate without explanation in response to these requests.

Your response states that the Department is withholding the responsive records because disclosure would not be in the public interest and would prejudice the possibility of effective law enforcement. You also state that withholding such information is essential to ensure that the Department can continue to effectively monitor criminal activity. However, this response does not explain how these requested records pertain to an ongoing investigation, confidential investigative techniques, or witness statements and also fails to demonstrate how disclosure of these particular records would prejudice investigative efforts as required by Exemption (f). With regard to Exemption (n), this response merely cites the exemption and does not address the security-related rationale needed to justify withholding records under this exemption.

As a result, the Department has failed to satisfy its burden of proving with specificity why the responsive records may be withheld in their entirety under Exemption (f) and Exemption (n). The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O(a). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations.

Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Katz-Lacabe with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Katz-Lacabe a written explanation, with specificity, how a particular exemption applies to each record.

Well, the Boston PD has fulfilled the letter of the state’s order, and has provided Mike Katz-Lacabe with a more verbose answer, albeit one that is completely unchanged in terms of results. No documents will be released but, hey, at least the explanation runs an additional half-page!

More specifically, disclosing the existence of and capabilities provided by the type of equipment/technology referenced in your request would reveal sensitive technological capabilities possessed by the Department, and other members of the law enforcement community, and may allow individuals who are the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement. This would not only potentially endanger the lives and physical safety of law enforcement officers and other individuals, but also adversely impact criminal investigations. Additionally, the information contained within the requested documents could be used to construct a map or directory of jurisdictions that possess the investigative capabilities, thereby providing further information for potential suspects that could be used to evade detection.

Through public disclosures, the use of this technology will be rendered essentially useless for future investigations. In order to ensure that such and any information related to its functions, operation and use, is protected from potential compromise it is not subject to disclosure as a public record.

As MuckRock’s Shawn Musgrave points out, the BPD has dropped its unexplained (n) exception (“likely to jeopardize public safety”) in response to the state’s clarification orders, but it still is claiming the documents sought are “investigatory materials,” even though they really aren’t.

Mr. Katz-Lacabe has already filed a subsequent appeal to the state. He contends that his request for fiscal documents and non-disclosure agreements — which all state and local law enforcement agencies are required to sign with the FBI prior to acquiring cell phone tracking devices — do not qualify as investigatory materials.

And they aren’t. The FBI issues a slightly-tweaked boilerplate itself — the NDAs it forces local law enforcement agencies to sign. Fiscal documents reveal little about capabilities and, depending on the extent of the redactions — very little about what, if any, equipment is in the possession of these agencies. None of the requested documents come anywhere close to providing specifics about past or ongoing deployments.

The BPD’s extreme reluctance to release these documents could very well trace back to the non-disclosure agreement it won’t release. It may also be concerned that fulfilling this request could result in the release of actual investigatory materials by mistake — a concern many agencies share after FOIA requests have resulted in “oversharing” by inexperienced FOIA response staff. No matter what the rationale for the full non-disclosure, the BPD’s reliance on these exemptions for these specific documents is clearly bogus.

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