Brandon Stokes v. Pentucket Regional School District (SPR 20250632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2025 SPR25/0632 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.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0396 Determination of the Supervisor of Records (February 25, 2025). In my February 25th determination, I ordered the School to clarify its claims for withholding responsive video footage under Exemptions (f) and (n) of the Public Records Law, and ordered the School to clarify whether segregable portions of the responsive video could be provided. Subsequently, the School responded on March 6, 2025, providing Mr. Stokes with a fee estimate for redacting the responsive record. Unsatisfied with the School’s response, and objecting to the fees, Mr. Stokes petitioned this office, and this appeal, SPR25/0632, was opened as a result. Subsequent to the opening of this appeal, the School provided Mr. Stokes with a further response on March 14, 2025, indicating that “the fee estimate is withdrawn,” and that the School intends to withhold the record in its entirety. 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, 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 SPR25/0632 Page 2 March 19, 2025 § 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. Current Appeal In his appeal petition, Mr. Stokes argues the following: The videos show a fire in a public school building and public officials (school employees, first responders, etc.) carrying out their public duties. It is an important matter of transparency for the public to be able to assess how public officials are carrying out their duties as well as to see the impact of the incident on taxpayer funds. The School’s February 19th, March 6th, and March 14th Responses In its March 6, 2025 response, the School provides a total fee estimate of $394.51 for redacting the responsive record. In its March 14, 2025 response, the School asserts “that this security camera recording is exempt from disclosure in its entirety. As such, the fee estimate is withdrawn, and ... the school is unable to produce the record, with or without redaction.” The School refers back to its previous February 19, 2025 response, and goes on to assert that “upon further review, even after redaction under Exemption (f), we cannot release the security camera recording to [Mr. Stokes] because it is exempt in its entirety under Exemption (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

Dr. Justin Bartholomew SPR25/0632 Page 3 March 19, 2025 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 previous February 19th response, under Exemption (f), the School argued 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 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. 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,

Dr. Justin Bartholomew SPR25/0632 Page 4 March 19, 2025 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 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 March 14th response, the School argues the following under Exemption (n): As to the first prong, the District explained in its February 19th letter that providing its security camera recordings “would reveal 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… 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 would allow any person with malevolent intent to determine how to access District property and/or where their activities may not be monitored.” As such, the security camera recordings resemble the types of records listed because their release would be likely to jeopardize public safety in exactly the same way, by allowing a terrorist to exploit the information gleaned from them to identify capabilities and

Dr. Justin Bartholomew SPR25/0632 Page 5 March 19, 2025 vulnerabilities in the District’s security systems. As to the second prong, the District is responsible on a daily basis for the well- being of more than 2,200 students in Pre-K through 12th grade, as well as more than 400 staff. This is a vulnerable population, and while the security cameras have multiple purposes, such as ensuring that children can be monitored and avoid hazardous situations, one of the primary functions of the cameras is to help observe our buildings to ensure that unauthorized individuals do not have access to our buildings and property and, if they do gain access, that they are identified as soon as possible. To put a finer point on this explanation, school shootings remain a significant public safety issue throughout the United States, with the number of shootings growing almost every year and mass shootings occurring frequently. See, for example, National Center for Education Statistics, “Violent Deaths at School and Away From School, and Active Shooter Incidents,” https://nces.ed.gov/programs/coe/indicator/a01/violent-deaths-and-shootings; CNN, “School shootings in the US: Fast facts,” https://www.cnn.com/us/school- shootings-fast-facts-dg/index.html. The District has an obligation to its students and staff to withhold from public disclosure the very type of information that would allow someone wishing to commit a school shooting in order to maximize damage. But even other safety risks, such as students fighting, substance use or abuse, a student hiding or leaving school before dismissal, or an adult removing a child from school without authorization, also would be increased if anyone in the public is able to quickly determine where they can evade detection in our buildings and on our property. Thus, we have determined that we cannot release our security camera recordings without releasing integral security information that jeopardizes the safety of thousands of students and staff, and we are confident that we are exercising reasonable judgment in reaching this determination. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (f) and (n) claims made by the School to withhold the responsive record, the School must provide this office with an un-redacted copy of the responsive 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 School’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. 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.

Dr. Justin Bartholomew SPR25/0632 Page 6 March 19, 2025 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 School 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: Brandon Stokes