Karen Crum v. Hopkinton, Town of (SPR 20250436)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2025 SPR25/0436 Connor B. Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: I have received the petition of Karen Crum appealing the response of the Town of Hopkinton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2024, Ms. Crum requested the following: [1] [A]ll access card “swipes” of [an identified individual] from January 1, 2020 through July 12, 2024. [2] [A]ll frames (video captures) showing [an identified individual] entering and/or exiting the Hopkinton Police Department during the following time periods in the year 2023: January 9 through January 13; February 6 through February 10; May 8 through May 12; June 5 through June 9; September 4 through September 8; and, October 9 - October 13. Previous Appeal This request was the subject of a previous appeal. See SPR24/2864 Determination of the Supervisor of Records (October 31, 2024). In my October 31st determination, I ordered the Town to clarify its claims under Exemptions (b), (c), and (n) for withholding responsive records. Subsequently, the Town responded on November 15, 2024. Unsatisfied with the Town’s response, Ms. Crum petitioned this office, and this appeal, SPR25/0436, was opened as a result. 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

Connor B. Degan SPR25/0436 Page 2 February 27, 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. 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 Town’s November 15th Response In its November 15, 2024 response, the Town reiterates its claims under Exemptions (c) and (n) for withholding responsive records. See G. L. c. 4, § 7(26)(c), (n). The Town also notes the following regarding its previous claim under Exemption (b): [T]he Supervisor previously rejected the Town’s invocation of ... Exemption [(b)]. The Town, nonetheless, disagrees with that determination but, for purposes of this response, that disagreement is irrelevant given the application of Exemptions N and C. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App.

Connor B. Degan SPR25/0436 Page 3 February 27, 2025 Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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). When analyzing a privacy claim, there is 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. In its November 15th response, under Exemption (c), the Town argues the following: Here, as the Town previously responded, the targeted disclosure of the Police Chief’s whereabouts (or similar information about any other police officer) would implicate privacy concerns including but not limited to potential leave and other matters (e.g., family or medical issues) that could be of a highly personal nature. Establishing employee movement patterns and absences from the workplace could potentially reveal absences for legitimate but private reasons, such as illness, family leaves, and similar circumstances. Such absences are often about intensely private matters that would embarrass an individual of normal sensibilities. Moreover, given those matters’ nature, they concern intimate details of a highly personal nature concerning an employee’s personal health or family situation. Indeed, in any private workplace, such matters are not discussed nor disclosed publicly for exactly these types of reasons. And that same information is not available from other sources. The Town does not publicize personnel matters, including attendance or absences. Nor are an individual’s personal medical files or other family situations available from public sources. The Town cannot discuss particulars about any employee—including the Police Chief who is the subject of this request—without potentially revealing the very

Connor B. Degan SPR25/0436 Page 4 February 27, 2025 information that this exemption is designed to protect. It should be sufficient to say and explain that revealing an employee’s movement patterns into and out of one of (but not the only) that employee’s places of work would potentially reveal absences that are attributable to the very information that Exemption C protects. The Town therefore submits that the balancing test for Exemption C is satisfied on these facts, as further more detailed discussion would, as a general rule, undermine the Exemption’s purpose. ... Based on the information provided in its response, the Town has not met its burden to withhold the responsive records pursuant to Exemption (c). Specifically, the Town has not demonstrated that any privacy interest concerning when a public employee enters and exits their place of employment would outweigh the public interest in disclosure. Further, public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). 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

Connor B. Degan SPR25/0436 Page 5 February 27, 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 November 15th response, under Exemption (n), the Town argues the following: While video frames are not one of the enumerated items in the statute, they are very similar. Video frames of anyone entering the building, including the Chief of Police, necessarily reveal the location of the camera thus revealing the “internal layout” of those cameras and significant details about the Police Department headquarters, which is itself a sensitive, public safety building. This includes but is not limited to cameras located in areas that are not open to the public for security and other reasons. And, even if the location of a particular camera was viewable from a public space, that still would not reveal that particular camera’s capabilities (e.g., field of view, focus, other features). Thus, providing video frames as requested would provide the requestor with information about the security features of this sensitive public safety building in a way and to a degree that is not otherwise available to the public. Moreover, providing video captures of any police officer—and, in particular, the Chief of Police—and card swipes related to entering and exiting the building such as that requested here would reveal information about his patterns and practices for entry and egress from the building. That puts those employees, and the Chief, at risk, should a terrorist decide to attack either those persons, the building, or both. Accordingly, the video captures are little different from other records concerning “security measures” and, in any event, clearly “relat[e] to the security or safety of persons or buildings ….” As the SJC recognized in PETA, the statutory text—“including, but not limited to”—is open ended. Here, the video frames requested relate to cameras, the locations of which relate to those cameras’ layout. And the video frames themselves also relate closely to the enumerated record types in the statutes because the content sought would establish the movement patterns of police officers, who are or may be terrorist targets. While the statute may be narrowly construed, it is not and cannot be so narrowly construed such that records that plainly relate to the security of a police building—security cameras and access swipes for security locks—are viewed as fundamentally different from the other security related examples enumerated in the statute. As for the factual and contextual support, the Town believes it is straightforward. There can be little question that police officers and police buildings may be terrorist targets. Police officers serve as the primary law enforcement officers in

Connor B. Degan SPR25/0436 Page 6 February 27, 2025 their communities. They have responsibilities to protect the public from harm, including from terrorist attacks. The law has long recognized the need to keep information about police officers confidential to a greater degree than other members of the public. ... Indeed, and in the words of one court, police work can be “dangerous business.” ... This request would reveal the locations of certain security features (cameras) on the Police Department headquarters, thus disclosing to a potential terrorist important security features inherent to that building’s design and layout. It would also reveal the movement patterns and practices of a potential terrorist target (Chief), including any patterns around his entry or exit into the building, making him an easier target for a terrorist or other attack. Those facts and in the context of what the statute seeks to protect put both requests squarely within Exemption N’s protections. Indeed, it is important to point out that, in addition to the normal security concerns of any Police Department in the Commonwealth, the Hopkinton Police Department is even more of a target than most. As the host community for the start line of the Boston Marathon, the Hopkinton Chief of Police plays an integral role in the security of the many thousands that participate in or attend that event. Moreover, the Town of Hopkinton also serves as the host community to the largest peak-shaving liquefied natural gas facility in New England. The Police Chief of the Town of Hopkinton is responsible in large part for emergency responses to those locations as well as any other in the Town. He is, accordingly, a target for any terrorist that may be contemplating an attack at any event or location in Town, including the Police Department headquarters, the Marathon starting line, the LNG facility, or any other. His movement patterns and practices, if revealed, would make it easier for a terrorist to strike at him and correspondingly strike at the Town’s ability to respond to an attack. Although portions of the responsive records may fall under Exemption (n), based on the Town’s response, it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is inextricably intertwined with exempt data such that records cannot be segregated. The Town must explain whether it is able to redact the records so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Ms. Crum 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.

Connor B. Degan SPR25/0436 Page 7 February 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Karen Crum