Denver Police chemical weapons materials safety data sheets (MSDS)

Brian Waters filed this request with the Denver Police Department of Denver, CO .
Status
Rejected

Communications

From: Brian Waters


To Whom It May Concern:

Pursuant to the Colorado Public Records Law, I hereby request the following records:

Materials safety data sheets (MSDS) or safety data sheets (SDS) for chemical irritants such as tear gas or tear spray; OS, CN, CS, or CR gas or spray, or any other non-lethal or less-lethal irritant or chemical weapon, such as mace, pepper spray, or oleoresin capsicum. Please search your records for safety data sheets for all such chemical irritants which are used or stored by the Denver Police Department.

The Occupational Safety and Health Administration (OSHA) requires all employers to keep SDS sheets on-file for any chemicals stored or used (https://www.osha.gov/Publications/OSHA3514.html). Furthermore, DPD reported on Twitter that it deployed an irritant on Sunday, January 27, 2019 (https://twitter.com/DenverPolice/status/1089681382324850688). Please include the SDS for any irritants or chemical weapons deployed on this date, but also any irritants or chemical weapons in DPD's inventory, even if they were not used on the 27th.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.

Sincerely,

Brian Waters

From: Denver Police Department

Good Afternoon, Mr. Waters:

Records of the Denver Police Department are criminal justice records, the disclosure of which is governed by the Colorado Criminal Justice Records Act (CCJRA), CRS 24-72-301, et seq. Except for records of "official action," the disclosure of criminal justice records is discretionary and can be denied where the custodian believes disclosure would be contrary to the public interest. Section 24-72-305(5), CRS.

Pursuant to Harris v. Denver Post, 123 P.3d 116 (Colo. 2005), the following factors are used to determine whether a record should be released or withheld:

1. the privacy interests of individuals, if any, who may be impacted by a decision to allow disclosure of the record;
2. the agency's interest in keeping confidential information confidential;
3. the agency's interest in the integrity of on-going investigations;
4. the public purpose to be served in allowing disclosure of the record; and
5. any other pertinent considerations relevant to the circumstances of the particular records
request, including whether disclosure would be contrary to the public interest.

The records you requested are not records of "official action" and therefore, any disclosure is discretionary subject to a balancing of the factors above. We identified and reviewed the SDS sheets for chemical irritants stored and/or used by the Denver Police Department. Those sheets contain information that reveal tactical deployment details for each specific irritant. The disclosure of those records could negate the effectiveness of those less lethal weapons and compromise both officer and public safety. The Department's interest in preserving its tactical options outweighs any public purpose to be served by release of the requested records. Your request is denied because we believe it would be contrary to the public interest to release records that could compromise tactical operations. Section 24-72-305(5), CRS.

Mary Dulacki | Records Administrator
Department of Public Safety| City and County of Denver
p: 720.913.6262 | mary.dulacki@denvergov.org
[https://www.denvergov.org/content/dam/denvergov/Portals/534/images/DenverEmailSignature.jpg]

This e-mail and any attachments thereto are intended only for use by the addressee(s) named herein and may contain legally privileged or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail and any attachments thereto is strictly prohibited. If you have received this e-mail in error, please notify me immediately at 720-913-6262 and permanently delete the original and destroy any copies or printouts. Thank you.

From: Brian Waters

Hi Mary, thanks for following up.

I wonder if it would be possible for the Denver PD to release a redacted version of the MSDS sheets. While the department may feel there is a tactical reason not to disclose the records, there is also a public safety interest in disclosing health and safety information about these chemicals. I found a 2008 court ruling that directs custodians to "redact sparingly to promote the CCJRA’s preference for public disclosure" (https://scholar.google.com/scholar_case?case=7289631639739989880&q=Freedom+Colo.+Info.,+Inc.+v.+El+Paso+County+Sheriff%E2%80%99s+Dep%E2%80%99t&hl=en&as_sdt=4006&as_vis=1). Therefore, I'm wondering if you might release a redacted or partial version of the records, or whether you feel there might be other records available that might contain the type of information I'm looking for.

Thank you for your help,
Brian Waters

From: Denver Police Department

Good Evening, Mr. Waters:

We considered release of redacted chemical data sheets and believe that disclosure of the actual chemical agents which may be deployed by the Denver Police Department could potentially negate the effectiveness of those less lethal options, compromising both public and officer safety. While we appreciate and consider the public interest in the health and safety information about the chemical irritants, we believe that the public interest, coupled with the Department’s interest in maintaining a variety of less lethal options to effectively address diverse situations outweighs the public interest in the specific chemicals involved. Your request is denied because we believe it would be contrary to the public interest to release records that could compromise public and officer safety. CRS 24-72-305(5).

Mary Dulacki | Records Administrator
Department of Public Safety| City and County of Denver
p: 720.913.6262 | mary.dulacki@denvergov.org
[https://www.denvergov.org/content/dam/denvergov/Portals/534/images/DenverEmailSignature.jpg]

This e-mail and any attachments thereto are intended only for use by the addressee(s) named herein and may contain legally privileged or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail and any attachments thereto is strictly prohibited. If you have received this e-mail in error, please notify me immediately at 720-913-6262 and permanently delete the original and destroy any copies or printouts. Thank you.

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