Kieran Bell v. University of Massachusetts - Lowell (SPR 20242838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2838 Shelly Thrasher Chief of Police University of Massachusetts Lowell Police Department 220 Pawtucket Street Lowell, MA 01854 Dear Chief Thrasher: I have received the petition of Kieran Bell appealing the response of the University of Massachusetts Lowell Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2024, Mr. Bell requested copies of any CCTV or bodycam footage that may have recorded an incident on 3/20/2024 involving a student being tackled and cuffed. The Department responded on July 26, 2024, withholding responsive record pursuant to the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), and Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). Unsatisfied with the Department’s response, Mr. Bell petitioned this office and this appeal, SPR24/2838, was opened as a result. While this appeal was pending, the Department provided a further response to this office on October 24, 2024. Status of Requestor In his appeal petition, Mr. Bell states, “[s]ince the incident only involved myself and three members of the Umass Lowell Campus Police Department, I believe it is my right to have a copy of all footage of the incident.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Bell’s status as a person involved in the incident in question will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Chief Shelly Thrasher SPR24/2838 Page 2 October 25, 2024 It is unclear if Mr. Bell may have a greater right of access to the responsive record outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Mr. Bell a greater right of access to the responsive record. 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. 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. Current Appeal In his appeal, Mr. Bell states, “I am writing this letter to appeal the rejection of my public records request for the CCTV for an incident … The video would not show any other students or civilians therefore would not violate any FERPA regulations.… Any video of these locations would not show any structural elements, security measures, or any of the items listed under Exemption (n).… Any other people or potentially sensitive information can be blurred out. I just want to obtain the video of myself.” The Department’s July 26th and October 24th Responses In its July 26, 2024 response, the Department cited Exemptions (a) and (n) of the Public Records Law to withhold the responsive record. 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

Chief Shelly Thrasher SPR24/2838 Page 3 October 25, 2024 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. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . . 20 U.S.C. § 1232g(b)(1). The statute goes on to list seven categories of individuals, agencies, and organizations to which “education records” may be released. In addition, FERPA provides the following limitation on the definition of “education records”: The term “education records” does not include— . . . records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.

Chief Shelly Thrasher SPR24/2838 Page 4 October 25, 2024 20 U.S.C. § 1232g(a)(4)(B)(ii). In its July 26th response, the Department mentions FERPA without providing any additional information. Additionally, in the Department’s October 24th response, it states, “[t]he video is being withheld under FERPA for student privacy…” Based on the Department’s responses, it is unclear how the responsive record constitutes “education records” as defined under FERPA. The Department must clarify this. Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 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). 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.” PETA, 477 Mass. at 289-90. 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 “[because 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.

Chief Shelly Thrasher SPR24/2838 Page 5 October 25, 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 July 26, 2024 response, the Department states, “[y]our request for video footage from the night of 3/20/2024 in the foyer and outside of the [identified location] is denied under public records law [E]xemption [(n)] – Facility Security and FERPA. Also, in response to your request regarding bodycam footage; UMPPD Officers don’t wear bodycams.” In its October 24, 2024 response, the Department also states it is withholding responsive record under Exemption (n) of the Public Records Law for “the safety of the University Community. By releasing video footage, we are disclosing the location of our cameras on campus which could in turn compromise student, faculty and staff safety on campus.” The Department also states it “reached out to Kieran Bell and offered him the opportunity to come in and view the video footage at a time of his choosing. I did also inform him that we would not be releasing the video to him.” Based on the Department’s response, I find it has not met its burden to withhold the requested record pursuant to Exemption (n). It is unclear how the requested record resembles the records listed in the statute. See id. at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290- 91. Also, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the records are “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Further, it is unclear why the record may be withheld in its entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Bell with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Bell may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Chief Shelly Thrasher SPR24/2838 Page 6 October 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kieran Bell