George and Jen Burden v. Lunenburg, Town of (SPR 20241070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1070 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. Burden clarified they were seeking retrieval of the footage. Previous Appeal The requested records were subject to a previous appeal. See SPR 24/0864 Determination of the Supervisor of Records (April 5, 2024). In my April 5, 2024 determination, I ordered the Town to clarify how the records are exempt pursuant to Exemption (n) of the Public Records Law. The Town provided a response on April 5, 2024. Unsatisfied with the response, Mr. Burden petitioned this office and this appeal, SPR 24/1070, 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). 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 SPR24/1070 Page 2 April 25, 2024 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. 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. The Town’s April 5th Response In its April 5, 2024 response, the Town cited Exemptions (a), (c), and (n) of the Public Records Law, and withheld the entirety of the requested records. Current Appeal In his April 10, 2024 appeal petition, Mr. Burden queried, “[c]an you please open an appeal to the response provided by [an identified individual] due to not being provided public records as we are not in agreement with the reason provided…” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Heather R. Lemieux SPR24/1070 Page 3 April 25, 2024 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its April 5th response, the Town cited G. L. c. 78, § 7, which provides, in pertinent part: That part of the records of a public library which reveals the identity and intellectual pursuits of a person using such library shall not be a public record as defined by clause Twenty-sixth of section seven of chapter four. G. L. c. 78, § 7. Under Exemption (a) and G. L. c. 78, § 7, the Town stated, “…library users visiting the library during this time period would be revealed by the release of these records. As video footage would specifically reveal the identity and intellectual pursuits of a person using the library, it is statutorily exempt from the definition of a public record.” Based on the Town’s response it is unclear how the record can be withheld in its entirety. In particular, it is unclear why the part of the records which reveals the identity and intellectual pursuits of a person using the library cannot be redacted to protect such information. The Town must explain whether segregable portions of the requested records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Heather R. Lemieux SPR24/1070 Page 4 April 25, 2024 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Town stated that the record “…contains extensive footage of individuals and minors and we have no means of obscuring these individuals in records that might otherwise be released. The footage of three cameras pertain entirely to a space reserved exclusively for children and their families. A fourth for an area reserved exclusively for teenagers. The release of people’s images and behavior without their knowledge or consent constitutes an unwanted invasion of personal privacy.” Based on the Town’s response, it is unclear how the records in their entirety may be withheld pursuant to Exemption (c). It is uncertain how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. The Town must explain whether segregable portions of the requested records can be provided. 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,

Heather R. Lemieux SPR24/1070 Page 5 April 25, 2024 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. 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 April 5th response, the Town stated: [The record requested] would provide you with a complete record of the area recorded by our surveillance equipment and providing you with the complete layout of the library, including all entrances and exits and location and range of our security cameras and any other security measures in place. The information provided by the security footage equates to a blueprint of the library, and allowing you to evade current security measures, making the library more vulnerable to attack and creating a threat to public safety. 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. It is unclear how footage of publicly accessible areas equates to a blueprint. It is also unclear how footage of publicly accessible areas substantively differ from the information a member of the public would gain by entering a publicly accessible area. 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 record pursuant to Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the record is likely to jeopardize public safety or cyber security. See PETA, at 289-90. As a result, I find that the Town did not meet its burden of specificity in claiming Exemptions (a), (c), and (n) of the Public Records Law to withhold the requested record in its entirety.

Heather R. Lemieux SPR24/1070 Page 6 April 25, 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