Kieran Bell v. University of Massachusetts - Lowell (SPR 20243120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3120 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/UMLPD) 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/2838 Determination of the Supervisor of Records (October 25, 2024). In my October 25th Determination, I found that the Department needed to clarify how the record could be withheld in its entirety under Exemption (a) and Exemption (n) of the Public Records Law. The Department responded on November 6, 2024. Unsatisfied with the Department’s response, Mr. Bell petitioned this office and this appeal, SPR24/3120, 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 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 SPR24/3120 Page 2 December 2, 2024 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 that he was permitted to view the requested security video, but was not given his own copy of the video. He states, “I was not aware that coming in to view the footage under officer supervision would be seen as a resolution to my original appeal. When I viewed the video, there was nothing sensitive shown, therefore there is no reason for a copy to be withheld. They had previously offered the option of viewing the footage in person, but I specifically wanted to receive a copy.… I believe that the response from UMLPD does not properly address my request or appeal. I also noticed that UMLPD once again sites Exemption (n) as the reason for withholding a copy of the footage….” The Department’s November 6th, July 26th, and October 24th Responses 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 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.” In its most recent response on November 6, 2024, the Department states, “UMLPD provided Mr. Bell with an opportunity to review the responsive record. On October 31, 2024, Mr. Bell came to the UMLPD and reviewed the record. We consider that the above result meets your ordered action – as it reconciles Mr. Bell’s records request with UMLPD’s need to apply certain withholding exemptions, including G. L. c. 4, § 7(26)(n).” 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,

Chief Shelly Thrasher SPR24/3120 Page 3 December 2, 2024 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. 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. The Department is advised, 950 C.M.R. 32.06 provides that “a person shall not be required to make a personal inspection of the record prior to receiving a copy.” See 950 C.M.R. 32.06(1)(e); see also 950 C.M.R. 32.07(1)(a) (“upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record”). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (n) claims made by the Department to withhold the responsive record, the Department must provide this office with an un-redacted copy of the record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1.

Chief Shelly Thrasher SPR24/3120 Page 4 December 2, 2024 This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Kieran Bell