George and Jen Burden v. Lunenburg, Town of (SPR 20240864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0864 Heather R. Lemieux Town Manager Town of Lunenburg 17 Main Street P.O. Box 135 Lunenburg, MA 01462 Dear Ms. Lemieux: I have received the petition of George Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2024, Mr. Burden requested, “…all camera video footage from the Lunenburg Library for March 4, 2024 from 3:00 p.m. to 5:00 p.m. be preserved. This would include video footage for all cameras at the library.” On March 13, 2024, Mr. and Mrs. Burden clarified they were seeking retrieval of the footage. The Town provided a response on March 20, 2024. Unsatisfied with the Town’s response, Mr. Burden petitioned this office and this appeal, SPR24/0864, 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 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. See 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

Heather R. Lemieux SPR24/0864 Page 2 April 5, 2024 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 their March 20, 2024 appeal petition, Mr. Burden stated, “[t]he appeal is being made due to the request not being full-filled.” Mr. Burden also stated, “[a]lso, please note you had already provided us with some video footage from the library.” The Town’s March 20th Response In its March 20, 2024 response, the Town cited Exemption (n) of the Public Records Law to withhold the requested records in their entirety. Exemption (n) 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 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.

Heather R. Lemieux SPR24/0864 Page 3 April 5, 2024 PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. In its March 20, 2024 response, the Town stated: As it relates to your request, we do not intend to release any security video footage to you based on the following exemptions. …releasing footage from the library security cameras is likely to ‘jeopardize public safety or cybersecurity.’ The disclosure of the video would reveal the locations of the cameras, and the scope and range of the cameras. This disclosure would compromise the security of the building and expose the safety procedures that are in place. Furthermore, the footage at the library contains extensive footage of minors and we have no means of obscuring these individuals in records that might be released. This factor creates another protected exemption to the public records law. Based on the Town’s response, it is unclear how the requested records resemble the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are 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). Further, the Town did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records are likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Town must clarify these matters. Additionally, the Town is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). As a result, I find that the Town did not meet its burden of specificity in claiming Exemption (n) of the Public Records Law to withhold the requested records.

Heather R. Lemieux SPR24/0864 Page 4 April 5, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. Burden 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. Burden may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: George Burden