Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20180691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23, 2018 SPRlS/691 Mr. Patrick Ward, Esq. Town Clerk Brookline Town Hall 333 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, § 1 OA; 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 Town provided Mr. Ames with a response on April 30, 2018 citing Exemption (n) again for withholding video records. In an email on May 11, 2018 to this office Mr. Ames appealed the Town's April 30th response. 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, § lOA(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 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. SPR18/691 Page 2 May 23, 2018 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 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, § lO(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 "[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.

Patrick Ward, Esq. SPR18/691 Page 3 May 23, 2018 Current Appeal Mr. Ames' May 11, 2018 appeal of the Town's April 30, 2018 states that the Town failed to meet its burden under Exemption (n). The May 11th appeal focuses on the request for 2 hours and 25 minutes of video surveillance of the front desk at the Brookline Police Department. Mr. Ames in his appeal states "[t]he custodian failed to identify anything that would be revealed in the 2 hours and 25 minutes of footage specifically requested that would be likely to jeopardize public safety or cybersecurity" as required by Exemption (n). Mr. Ames also explains that the Town's April 30th response "failed to assert that any specific security routines, victims, or witness to crimes would actually be revealed in the 2 hours and 25 minutes of footage." In response to Mr. Ames' May 1f 11 appeal, the Town sent an email on May 14, 2018 to this office stating the Town "is unable to provide Mr. Ames with the detailed elaboration he seeks without compromising the security issues the Town seeks to protect. The Town is willing to provide the Supervisor of Public Records with this information in confidence, if required to do so." The Town followed up with an email on May 15, 2018 to this office requesting an in camera review. I find that an in camera review of the exempted records would facilitate a determination as to the applicability of exemption claims made by the Town. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to the Town's custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. This office will coordinate with the Town to obtain umedacted copies of the records for in camera inspection without delay. The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence

Patrick Ward, Esq. SPRIS/691 Page4 May 23, 2018 would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~y~ Supervisor of Records cc: Mr. Brooks Ames