Brandon Stokes v. Pentucket Regional School District (SPR 20250396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 25, 2025 SPR25/0396 Dr. Justin Bartholomew Superintendent of Schools Pentucket Regional School District 22 Main Street West Newbury, MA 01985 Dear Dr. Bartholomew: I have received the petition of Brandon Stokes, of 7 News WHDH Boston, appealing the response of the Pentucket Regional School District (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 27, 2025, Mr. Stokes requested “surveillance video of a fire starting in an auditorium at Pentucket Regional High School on Saturday 1/25/24 as well the response to put out the fire.” The School responded on January 29, 2025. Unsatisfied with the School’s response, Mr. Stokes petitioned this office, and this appeal, SPR25/0396, was opened as a result. Subsequent to the opening of this appeal, the School provided a further response to this office and Mr. Stokes on February 19, 2025. 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. 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

Dr. Justin Bartholomew SPR25/0396 Page 2 February 25, 2025 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 School January 29th and February 19th Responses In its January 29, 2025 response, the School states that it is withholding responsive records, and in its February 19, 2025 response states that responsive video recordings are being withheld pursuant to Exemptions (f) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(f), (n). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its February 19th response, under Exemption (f), the School argues the following: [A]ny security camera recordings of this incident are part of an ongoing investigation by local police and fire departments. As such, these recordings contain information exempt from disclosure in whole or in part under the public records law pursuant to M.G.L. c.4, §7(26)(f), which exempts “investigatory materials necessarily compiled out of the public view by . . . investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The purpose of this exemption is to encourage “individual citizens to come forward and speak freely . . . concerning matters under

Dr. Justin Bartholomew SPR25/0396 Page 3 February 25, 2025 investigation, and ... be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62-63 (1976); Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 859, 862-63 (quoting Bougas, 371 Mass. at 62). The investigation to conclusively determine the cause and circumstances of the fire is ongoing, and any security camera recordings of this incident may be withheld while the investigation is ongoing in order to avoid hindering the investigation and/or prejudicing any witnesses. Although portions of the responsive recordings may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Specifically, the School must explain whether the video recordings can be redacted in order to protect the identities of voluntary witnesses, so that segregable portions of the recordings can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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

Dr. Justin Bartholomew SPR25/0396 Page 4 February 25, 2025 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. In its February 19th response, under Exemption (n), the School argues the following: In addition, recordings from the District’s security cameras are also exempt from disclosure under the public records law pursuant to Exemption (n), which applies to: M.G.L. c.4, §7(26)(n). This exemption applies to security camera recordings because disclosure of the recordings would reveal specific information concerning the ... location/viewing area of District security cameras, their operability/ability to record video, the quality of the video, and/or the scope of the camera’s range and capability which is not readily apparent upon looking at the unit, all of which would reveal the District’s capability to monitor not only the areas in question, but every other area covered by a similar camera on the school campus. Compare SPR15/058, recon. (June 5, 2015). As a result, the public release of the requested information would allow any person to determine the areas where the District’s security cameras do and do not record and, therefore, where their actions may or may not be observed. Thus, this information relates to the District’s security measures and/or to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure, and the District has determined that these records are ones which “a terrorist would find useful to maximize damage” and for which public disclosure is likely to jeopardize public safety or cyber security by allowing any person with malevolent intent to determine how to access District property and/or where their activities may not be monitored. See People for the Ethical Treatment of Animals, Inc. v. Department of Agricultural Resources, 477 Mass. 280, 289-91 (2017). For these reasons, the requested recording is exempt from disclosure pursuant to Exemption (n). Please understand that the application of this exemption does not reflect a judgment of [Mr. Stokes] personally, but the District does not provide security camera recordings in response to public records requests and all requesters must be treated equally. Based on the School’s response, it is unclear how the responsive video recordings resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the video recordings resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the recordings are the type of record that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation”

Dr. Justin Bartholomew SPR25/0396 Page 5 February 25, 2025 between the two prongs of Exemption (n) inquiry). Further, the School did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the School has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Stokes 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 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: Brandon Stokes