Ted Manka v. Burlington, Town of - Police Department (SPR 20242876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2876 Kevin Cooney Support Services Captain Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Mr. Cooney: I have received the petition of Ted Manka appealing the response of the Burlington 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 September 26, 2024, Mr. Manka requested the following: [1.] Bodycam and dashcam footage for all responding officers to the lockdown at the Burlington MA highschool on 9/24/2024 [2.] Police report(s) filed for the 9/24/2024 incident [3.] Post incident review on the WAVE emergency response (lockdown) system [4.] Any other recorded (video or audio) files related to the lockdown on 9/24/2024 at the Burlington MA highschool[.] The Department responded on October 16, 2024, providing redacted records and withholding additional records. Unsatisfied with the response, Mr. Manka petitioned this office and this appeal, SPR24/2876, was opened as a result. Subsequent to the opening of this appeal, the Department provided an additional response on October 24, 2024. 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

Kevin Cooney SPR24/2876 Page 2 November 4, 2024 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. Att’y 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 Department’s Responses On October 17, 2024, the Department cited Exemptions (c) and (n) to withhold records responsive to Items 1 and 4 of the request. The Department also cited Exemption (n) of the Public Records Law to redact information on records responsive to Item 2 of the request. Further, regarding Item 3 and part of Item 1 of the request, the Department stated, “please be advised that this Department does not have possession, custody, or control of the ‘Post-incident review on the WAVE emergency response (lockdown) system’ records requested… Additionally, the department does not have any ‘dashcam’ video footage in its possession or control as dashcams are not utilized by this Police Department.” In its October 24, 2024 response, the Department stated, “[o]ur reasoning in not releasing body camera footage on this incident was not only the presence of almost all juveniles, but that it also would show the tactics and response points as well as number of officers and how they deploy once inside the building.” Current Appeal In his appeal, Mr. Manka states, “I would like to formally appeal the decision for denial of body cam footage and I would like a less redacted version of the attachment previously sent… The footage can redact or obscure faces of anyone that is deemed to be a minor. I was not able to find a law saying that faces of minors cannot be shown on a video. In addition the town of Burlington publishes the faces of minors available online frequently… The Interior of the building has already been made public by the town of Burlington[.]” Subsequent to the opening of this appeal, Mr. Manka sent an email to this office on October 23, 2024, which states, “Burlington Schools is already publishing tours of the interior of the school… therefore, the logic of not turning over the bodycam because the interior of school buildings is not known is false. School teachers are documenting in great detail the interior layout and making it public for the world to see.”

Kevin Cooney SPR24/2876 Page 3 November 4, 2024 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). 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), regarding Items 1 and 4, the Department stated, “[t]he records requested depict the faces of juveniles who have not attained the age of 18 inside public school classrooms. If these portions of the videos are disclosed the identities of those minors would be compromised. As a result, such information must be withheld under the law. Based on the Department’s response, it is unclear how the records cannot be redacted to protect the identities of the juveniles. 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).

Kevin Cooney SPR24/2876 Page 4 November 4, 2024 Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this. 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.’” 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 “[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. Regarding Items 1 and 4 the Department stated the following to withhold records: The records requested contain video and audio that detail tactical practices used by the Burlington Police Department in response to “active threats” or “Terrorist” situations. The security video of the schools and the body-camera footage detail the police and public entry and exit points of the building; the disclosure of which could be utilized by a terrorist and jeopardize the safety of the students, facility, officers, and other citizens on scene. The footage of the officer’s bodycamera on scene inside the school details the layout of the hallways and the positions the officers were assigned while on scene. The disclosure of this would leave all persons on the scene (students, faculty, Officers, Citizens, etc) vulnerable to

Kevin Cooney SPR24/2876 Page 5 November 4, 2024 future attacks and put the lives of such in danger. Everything stated above could be information that a person could use to their advantage in an “active shooter,” “active threat,” or “terrorist” situation in the future. As this particular situation also involved minors we must do everything necessary to protect the welfare of the children, staff, police personnel, and citizens to resolve any possible threats to their safety. As a result, such information must be withheld under the law. Based on the Department’s response, I find that the Department has not met its burden to withhold the requested record under Exemption (n). Specifically, it is unclear how the requested record resembles the records listed in the statute. Also, the Department has not demonstrated that the record is one a terrorist would find useful to maximize damage. Additionally, the Department did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records are likely to jeopardize public safety. See PETA, at 289-90. The Department must clarify these matters. Regarding Item 2, the Department stated the following to redact information: The records requested contain a list of the officers who responded which if disclosed would easily detail the numbers of Police personnel on scene and their assignments during the response; the disclosure of which jeopardizes the safety of all persons involved. Additionally, the record requested details of police tactics and language used by the Burlington Police Department in incidents of “Active threats” or “terrorism” the disclosure of which would allow for individuals who wish to cause harm an advantage in future incidents. The records also detail the area within the WAVE alert system that had a faulty wire; the disclosure of this information would leave the alert system vulnerable to tampering and not just jeopardize the safety of the students but also lead to future trauma should another incident occur. As a result, such information must be redacted under the law. To the extent that the records detail the WAVE alert system, the Department may permissibly withhold such portions from disclosure under Exemption (n). However, based on the Department’s response, I find that the Department has not met its burden to redact the list of officers who responded and details of police tactics and language under Exemption (n). Specifically, it is unclear how this information is one a terrorist would find useful to maximize damage. Additionally, it is unclear how the disclosure of this information is “likely to jeopardize public safety.” See PETA, at 289-90. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Manka 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

Kevin Cooney SPR24/2876 Page 6 November 4, 2024 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Ted Manka