Susan T. Munford v. Kingston Police Department (SPR 20180148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16,201 8 SPR181148 Lt. Thomas A. Kelley Records Access Officer Kingston Police Department 244 Main Street Kingston, MA 02364 Dear Lt. Kelley: I have received the petition of Susan Munford appealing the response of the Kingston Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Munford requested "all camerafvideo recordings from the station for 11/3/17 from 12 pm to 4 pm, every camera." In a response dated November 20,2017, the Department denied access to records under Exemption (n) of the Public Records Law. G. L. c. 4, 5 7(26)(n). 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, 5 1O A(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, 5 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, $j lO(b)(iv) (a written response shall "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. . . ."); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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. G. L. c. 66, 5 1O (b)(iv). One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre * pre@sec.state.ma.us

Lt. Thomas A. Kelley Page 2 February 16,201 8 Exemption (n) In its November 2othr esponse the Department indicates it "believes the information clearly relates to security measures and the security and safety of persons or buildings." 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. Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to 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 Id. proposition that disclosure of the record is 'likely to jeopardize public safety.'" at 289-90. The PETA decision further provides that "[blecause 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 Id. determination given the context of the particular case." The Department's February 7, 201 8 Letter The Department supplied this office with a supplemental letter on February 7,201 8 further explaining reasons for the denial of Ms. Munford's request. The Department asserts, "[tlhe information directly relates to current security measures of the police station. These cameras monitor the access and egress of emergency personnel working within the building, access of victims of crimes entering the building, and the area designated for safe transfer of children as designated by the courts. Disclosure of video on these cameras would threaten the safety of these individuals as well as exposure of the security measures in place for the

Lt. Thomas A. Kelley Page 3 February 16,2018 vulnerability, emergency preparedness and safety of the [Department]." The Department also explains that booking videos "are not released to the court until requested through discovery and they are not released to the general public." The Department further notes that videos of prisoners in custody "in cells are of a private nature." Despite the February 7thl etter, it is unclear which responsive cameralvideo recordings exist. G. L. c. 66, 5 IO(b)(iv) (a records custodian 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)." In addition, although the Department generally describes what the cameras monitor, it is unclear what each responsive recording actually depicts, nor is it clear where all responsive cameras are located. Further, the Department has not demonstrated how disclosure of each responsive record is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Therefore, the Department has not met its burden to show how Exemption (n) applies to withhold all responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Conclusion Accordingly, the Department is ordered to produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of such 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, d/ Rebecca S. Murray Supervisor of Records cc: Susan Munford