Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20180490)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 26, 2018 SPRlS/490 Mr. Patrick Ward, Esq. Town Clerk Brookline Town Hall 3 3 3 Washington Street, Room 104 Brookline, MA 02445-6853 Dear Attorney Ward: I have received the petition of Brooks Ames appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 21, 2018 Mr. Ames requested from the Town "video of the elevators, entrances and exits of town hall on February 15, 2018. Also please provide any video surveillance of the front desk of the police department." In a response dated April 4, 2018, the Town denied access to records under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). The Town explained that "release of such things as locations and angles captured by surveillance in the Public Safety Building would undermine public safety and that the release of this information would be detrimental to the public safety efforts." Mr. Ames appealed on April 11, 2018 stating that the denial by the Town under Exemption (n) was not valid due to the Town previously providing "video surveillance of the front desk" without objection. 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, § IOA(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, § 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. 507,511 (1995) (custodian has the 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

Patrick Ward, Esq. SPR18/490 Page2 April 26, 2018 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, § IO(b )(iv). Exemption (n) In its November 20th response 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. G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian ofrecords 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 proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[bJ 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. Appeal The Town asserts in the April 4th denial that releasing the videos of "locations and angles captured by surveillance" would undermine public safety "as it relates to security measures and emergency preparedness." Mr. Ames points to a prior request in which the Town provided him

Patrick Ward, Esq. SPR18/490 Page 3 April 26, 2018 with video of the front desk of Town's police department. On March 8, 2017, Mr. Ames requested a video of the front desk and was provided a fee estimate from the Town on March 9, 2017. Mr. Ames paid the fee and received the video from the Town. It is unclear why the Town cited Exemption (n) in Mr. Ames' March 21st request when in prior instances video footage of the front desk of the Town's Police Department were not withheld based on this exemption. The Town must provide more information for citing Exemption (n) in response the March 21st request which would distinguish it from prior disclosures of front desk video footage. The Town has not demonstrated how disclosure of the video is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Therefore, the Town has not met its burden to show how Exemption (n) applies to withhold responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Conclusion Accordingly, the Town is ordered to provide a response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Brooks Ames