Don Bradley v. Andover, Town of - Town Manager (SPR 20171224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2017 SPR1711224 Andrew P. Flanagan Town Manager Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Mr. Flanagan: I have received the petition of Mr. Don Bradley appealing the response of the Town of Andover to his request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, in an email dated July 24, 2017, Mr. Bradley requested"[ c]opies of all photographs taken by the Game Cameras installed at Dug Pond," "copies of any video or audio taping that occurred at Dug Pond," a "listing ofthe personnel who had access to those photos and what their relationship to law enforcement, the town of Andover, or any other organizations such as the Boy Scouts" is, and a "written explanation as to why [Mr. Bradley's] civil rights and [his] neighbors [sic] civil rights were being violated." Robert Douglas, Director of Conservation, denied his request, claiming some responsive records are exempt under Exemption (n) and some responsive records do not exist. G. L. c. 4, § 7 (26)(n); G. L. c. 66, § 1O (a)(ii). The Public Records Law The Public Records Law stronglyfavors 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 town 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, § 1O (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. 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

Andrew Flanagan SPR17/1224 Page 2 September 14, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's Response Exemption (n) ' In its response to Mr. Bradley's request for "[c]opies of photographs taken by the Game Cameras installed at Dug Pond," the Town indicates it provided 310 images to Mr. Bradley on a flash drive. The Town further indicates it is withholding 3,755 images "because they are within exemption (n) of the General Laws Chapter 4, Section 7(26)(n)." The Town explains that "[a]fter consultation with the Andover Police Department and Andover Fire Rescue, it is [the Town's] determination that someone could use the information to know and predict the times when adults or children visit the pond, and use that knowledge to target them." 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.

Andrew Flanagan SPR17/1224 Page 3 September 14, 2017 In light ofthe two prong analysis articulated in the PETA decision, it is unclear how the 3,755 photographs may be withheld in their entirety under Exemption (n). Therefore, I find the Department has not met its burden to show how the remaining responsive records are exempt from disclosure. See Reinstein, 378 Mass. at 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). It is my understanding that a member of the Public Records Division staff provided a representative of the Town with the citation for the referenced decision. ' No duty to create records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 ofthe request. See G. L. c. 66, § 10(a)(ii). However, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record" where responsive records need to be extracted from an existing data. See 950 C.M.R. 32.07(1)(f). Whereas the Town states it does not possess any records responsive to the request for "copies of any video or audio taping that occurred at Dug Pond," and a "written explanation as to why [Mr. Bradley's] and [his] neighbors civil rights were violated," I find Mr. Bradley's appeal · related to these requests resolved. However, in its response to Mr. Bradley's request for "a listing of the personnel who had access to those photos and what their relationship to law enforcement, the town of Andover, or any other organizations such as the Boy Scouts" is, the Town indicates, "[t]here is no such record and under the Public Records Law, the Town is under no obligation to create such a record for you." It is unclear what responsive records the Town has available. In accordance with SPR17/781 Determination of the Supervisor of Records (June 21, 2017), it is my determination that the Town has not met its burden as to the extractability of the files it has in its possession and must confirm what documents are in its possession that are responsive to the request. It is my understanding a member of the Public Records Division provided a representative of the Town with a copy of the referenced determination. Order Subsequent to the intervention by a Public Records Division staff member, I learned that a representative from the Town intends to provide Mr. Bradley with a supplemental response to his request for the withheld photographs; however, the Town did not assert an intention to provide Mr. Bradley with a supplemental response to his request for "a listing." Accordingly, the Town is hereby ordered to provide Mr. Bradley with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such

Andrew Flanagan SPR17/1224 Page4 September 14, 201 7 response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Bradley may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Don Bradley Thomas Urbelis, Esq. Robert Douglas