Brandon Stokes v. Bureau of the State House (SPR 20232021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2021 Tammy E. Kraus Superintendent Bureau of the State House 24 Beacon Street State House, Room 1 Boston, MA 02133 Dear Superintendent Kraus: I have received the petition of Brandon Stokes, of 7NEWS WHDH Boston, appealing the response of the Bureau of the State House (Bureau) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2023, Mr. Stokes requested the following records: [1.] ... surveillance video showing the electrical fire that caused the State House to be evacuated on 7/18/23. [2.] If there are no cameras in the room where the fire happened, I ask that video be provided from the nearest camera showing smoke. [3.] ... surveillance video showing the evacuation of the building, including hallways surveillance cameras as well as cameras inside the hearing chambers. Prior appeal The requested records were the subject of a prior appeal. See SPR23/1713 Determination of the Supervisor of Records (August 9, 2023). The Bureau responded on August 23, 2023. Unsatisfied with the response, Mr. Stokes petitioned this office and this appeal, SPR23/2021, 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 agency or 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

Superintendent Tammy Kraus SPR23/2021 Page 2 September 12, 2023 municipality 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. The Bureau’s August 23rd Response In its August 23, 2023 response, the Bureau denied the request pursuant to Exemption (n) of the Public Records Law. 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 c. 4, § 7(26)(n). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong 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.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any

Superintendent Tammy Kraus SPR23/2021 Page 3 September 12, 2023 other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90. In its response, the Bureau stated, “[f]irst, in response to the request for ‘video showing the electrical fire that caused the State House to be evacuated on 7/18/23’ and video ‘from the nearest camera showing smoke’ I should have clarified that these videos do not exist. We have no cameras in the room where the fire occurred nor did any of our surveillance cameras capture any smoke from the fire.” The Bureau further stated, “[s]econd, in response to the request for ‘surveillance video showing the evacuation of the building, including hallways surveillance cameras as well as cameras inside the hearing chambers, we denied this request because the requested videos are exempt from disclosure pursuant to clause (n) of the twenty sixth paragraph of section 7 of chapter 4 of the General Laws. Specifically, releasing these videos would reveal both our security measures and our emergency response plans and doing so would jeopardize the safety of our employees and the public.” Based on the Bureau’s response, I find that the Bureau did not provide sufficient factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Bureau has not sufficiently explained how disclosure of the records are likely to jeopardize public safety. See PETA at 289-90. Further, it is unclear if the Bureau could provide segregable portions of the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Bureau must clarify this matter. Conclusion Accordingly, the Bureau is ordered to provide Mr. Stokes with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Stokes may appeal the substantive nature of the Bureau’s response within ninety days. See 950 C.M.R. 32.08(1).

Superintendent Tammy Kraus SPR23/2021 Page 4 September 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes