Kevin Rothstein v. Cambridge, City of - Office of the City Solicitor (SPR 20200462)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor af Records

March 18, 2020 SPR20/0462

Seah Levy Records Access Officer

_ City of Cambridge Law Department City Hall 795 Massachusetts Ave. Cambridge, MA 02139

Dear Ms. Levy:

I have received the petition of Kevin Rothstein of WCVB-TV appealing the response of the City of Cambridge (City) to a request for public records, G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Rothstein requested a copy of video surveillance footage.

The City responded to Mr. Rothstein on February 20, 2020, withholding responsive records pursuant to Exemptions (f) and (n) of the Public Records Law. Unsatisfied with this response, Mr, Rothstein petitioned this office and this appeal, SPR 20/0462, was opened as a result.

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, § 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, § 10(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

Seah Levy SPR20/0462 Page 2: March 18, 2020

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records,

Current Appeal

In its February 20" response, the City asserts that the responsive records are exempt from disclosure pursuant to Exemptions (f) and (n) of the Public Records Law, Subsequent to the opening of this appeal, on March 12, 2020 the City providing a supplemental response providing further information regarding its Exemptions (f) and (n) claims.

Exemption (f) Exemption (f) permits the withholding of: .

investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest

G. Lc. 4, § 7(26)(f).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses, Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters, Id, at 62, Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass, at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the

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individuals can be indirectly identified even with redaction.

In its March 12" response, the City asserts that “the requested video footage was collected as part of an investigation concerning an incident.” The City argues that “disclosure of the sought video footage would...reveal the location and to some extent the capabilities of the surveillance equipment that created said footage. This knowledge would allow a potential criminal to avoid detection by said surveillance equipment in committing a crime against that property (or properties),”

Based on the City’s responses, it is unclear how the surveillance videos constitute “investigatory materials necessarily compiled out of the public view.” The City’s response indicates that the video footage was taken before the commencement of the investigation. It is further unclear how the release of the surveillance videos “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required by Exemption (f). The City has not demonstrated that release of the videos is likely to harm future investigative efforts.

Exemption (n) Exemption (n) permits the withholding of: |

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. . 4, § 7(26)(n).

Exemption (n) allows for the withholding of certain records which if released would jeopardize 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

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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.

Under Exemption (n), the City states that “the release of the requested video footage would disclose the location and to some extent the capabilities of the surveillance equipment that created said footage,” The City argues that “[a] potential criminal would be able to use this information in order to evade detection of said surveillance equipment in committing a crime against the private property (or properties) where that surveillance equipment is located.”

Although the City asserts that the records sough “contain exempted information related to property security measures,” it is unclear how the information resembles the records listed as examples in the statute, as contemplated in PETA. See PETA, 477 Mass, at 289. Particularly, it is unclear how the videotapes resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the redacted information is the type that “a terrorist would find useful to maximize damage” as required under Exemption

(n).

Where the requested records bear a minimal resemblance ‘to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Therefore, although the City states that disclosure “would make it easier to commit crimes against the property,” I find it has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the redacted information is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id, at 290-91.

Conclusion Accordingly, the City is ordered to provide Mr. Rothstein with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any 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. eladarg

Supervisor of Records

ce; Kevin Rothstein, WCVB-TV