George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20250117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0117 Jeffrey M. Thibodeau Interim Chief of Police Lunenburg Police Department 655 Massachusetts Avenue Lunenburg MA, 01462 Dear Chief Thibodeau: I have received the petition of Jen and George Burden, appealing the response of the Lunenburg 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 December 7, 2024, Mr. and Mrs. Burden requested “… video footage from all security cameras that cover any portion of the front side of the Lunenburg Safety building for [a specified date and time]. Please identify each camera the video footage is being provided for.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0073 Determination of the Supervisor of Records (January 10, 2025). In my January 10th determination, I found that the Department had provided Mr. and Mrs. Burden with a response on December 10, 2024. Unsatisfied with the response, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/0117, 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

Jeffrey M. Thibodeau SPR25/0117 Page 2 January 17, 2025 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 December 10th Response In its December 10, 2024 response, the Department withheld responsive records pursuant to Exemption (n) of the Public Records Law. Specifically, the Department informed Mr. and Mrs. Burden that disclosure of the requested records “… would jeopardize the Lunenburg Public Safety building’s security and safety measures.” Current Appeal In their January 13, 2025 petition to this office, Mr. and Mrs. Burden objected to the withholding of responsive records, contending that disclosure would not jeopardize public safety. 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.

Jeffrey M. Thibodeau SPR25/0117 Page 3 January 17, 2025 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. Based on the Department’s response, it is unclear how the requested video footage resembles the records listed under Exemption (n). See PETA, 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. Further, the Department has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. and Mrs. Burden with a response to the 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. and Mrs. Burden may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jen and George Burden