George and Jen Burden v. Lunenburg, Town of (SPR 20241217)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 7, 2024 SPR24/1217 Muir Haman Library Director Lunenburg Public Library 1023 Massachusetts Avenue Lunenburg, MA 01462 Dear Mr. Haman: I have received the petition of George Burden appealing the response of the Lunenburg Public Library (Library) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 2, 2024, Mr. Burden requested “video footage from all cameras at the Lunenburg Public Library for April 1, 2024 from 4:00 PM to 6:00 PM.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1025 Determination of the Supervisor of Records (April 19, 2024). In my April 19th determination, I ordered the Library to clarify its claims under Exemption (n) for withholding responsive records. Subsequently, the Library responded on April 22, 2024, claiming the responsive records are exempt from disclosure pursuant to G. L. c. 78, § 7, and Exemptions (c) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (n). Unsatisfied with the Library’s response, Mr. Burden further appealed, and this case 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Muir Haman SPR24/1217 Page 2 May 7, 2024 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 Library’s April 22nd Response In its April 22, 2024 response, the Library states that it is withholding “security video footage” pursuant to G. L. c. 78, § 7, and Exemptions (c) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (n). 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 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 22nd response, the Library cites G. L. c. 78, § 7, which provides in pertinent part:

Muir Haman SPR24/1217 Page 3 May 7, 2024 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 G. L. c. 78, § 7, the Library argues that “[t]he identity, behavior, and borrowing habits of 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 Library’s April 22nd response, where the responsive video footage would reveal the identity and intellectual pursuits of persons using the library, I find the Library has explained how the video footage is the type of record contemplated under G. L. c. 78, § 7. Consequently, I find that the Library has met its burden to withhold the responsive video footage under G. L. c. 78, § 7 as it operates through Exemption (a) of the Public Records Law. 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. This exemption does not protect all data relating to specifically named individuals. Rather, 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). When analyzing a privacy claim, there is 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

Muir Haman SPR24/1217 Page 4 May 7, 2024 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. In its April 22nd response, under Exemption (c), the Library argues the following: The footage contains extensive footage of individuals and minors.... The footage of three cameras pertain entirely to a space reserved exclusively for children and their families. A fourth for an area exclusively reserved for teenagers. The release of people’s images and behavior without their knowledge or consent constitutes an unwanted invasion of personal privacy. 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. 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

Muir Haman SPR24/1217 Page 5 May 7, 2024 resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the Library argues that the responsive video footage “would provide ... a complete record of the area recorded by [the] surveillance equipment and providing ... the complete layout of the library, including all entrances and exits and location and range of [the] 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 [a person] to evade current security measures, making the library more vulnerable to attack and creating a threat to public safety.” In this case, where the Library has met its burden to withhold the responsive security video footage pursuant to Exemption (a) and G. L. c. 78, § 7, I find it is unnecessary to address the Library’s claims under Exemptions (c) and (n) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Burden is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: George Burden Heather Lemieux Elizabeth Lydon, Esq.