Karen Crum v. Hopkinton, Town of (SPR 20250863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2025 SPR25/0863 Connor B. Degan Town Clerk, Records Access Officer 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) and SPR25/0436 Determination of the Supervisor of Records (February 27, 2025). In my February 27th determination, I ordered the Town to clarify its claims under Exemptions (c) and (n) for withholding responsive records. Subsequently, the Town responded on March 17, 2025. Unsatisfied with the Town’s response, Ms. Crum petitioned this office, and this appeal, SPR25/0863, 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 SPR25/0863 Page 2 April 11, 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 March 17th Response In its March 17, 2025 response, the Town cites Exemption (n) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(n). 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

Connor B. Degan SPR25/0863 Page 3 April 11, 2025 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 17th response, under Exemption (n), the Town argues the following: The reason for the inability of the Town to redact the videos in question is tied, in part, to the nature of the request. The request is not simply for all video over a specified time frame at one or more locations in or around the Hopkinton Police Department. Rather the request is specifically targeted to frames of a certain individual – the Police Chief – entering or existing the Police Station within those time frames. As Hopkinton has explained in prior responses, the position of Police Chief is a sensitive one in any community and particularly in Hopkinton where this Chief is responsible for maintaining the safety of a community that is higher profile than many for a terrorist attack or other threat, based on its hosting of the Boston Marathon and a large LNG plant. And this is to say nothing of the sensitivity of revealing the movements or patterns of any police officer in the Town, all of whom discharge a public safety function that, at times, places their personal safety in jeopardy. Put simply, Police Chiefs and police officers may be the targets of terrorists or other threat actors. At times, that risk may be great or small, but it exists and at all times the Police Chief and his officers may be the targets of threats known or unknown. For this reason, the Hopkinton Police Department protects information that may reveal the whereabouts of its officers on a regular basis, including where and how they travel, particular if such information could reveal patterns or practices that could put them at even greater risk. The Legislative understanding that police officers face such risks that are different than those of the general public is reflected in the General Laws. For example, under G.L. c. 66, § 10b exempts from the definition of a public record the home addresses of police officers and other public safety personnel. There is no doubt why: revealing those home addresses puts those individuals at risk from individuals who may wish them harm.

Connor B. Degan SPR25/0863 Page 4 April 11, 2025 The rationale is no different for the video captures and card swipes that you seek. Establishing the Police Chief’s regular patterns of movement to and from the Police Department puts him at risk. And the very nature of the request – targeted specifically to the frames that establish those regular movements – means that the videos cannot be redacted to protect that information. Providing specific video frames or captures at specific times – whether they blur the Chief out or are otherwise redacted – reveal exactly when he is entering or existing the building. There is simply no way to meaningfully redact specific video captures or frames from specific times to protect the sensitive information that the mere identification of those specific captures or frames reveals. And the same is true of card swipes – revealing the specific times of card swipes necessarily reveals the precise movement patters of the Police Chief during the time periods in question. Moreover, providing video frames or captures, as previously discussed, also reveals the locations and capabilities of the security cameras as the Police Headquarters. This is information that runs directly to the security features of the building and falls squarely within Exemption N’s protections. It is unclear what could be redacted from those videos such that those cameras’ locations or capabilities (resolution, field of view, magnification, potential low light capabilities, etc.) would not be revealed. As those cameras constitute part of the overall security apparatus for a potentially high-value terrorist or criminal target, there is no way to redact video captures or frames from those cameras without eroding the overall security of the Police Building. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the Town to withhold responsive records, the Town must provide this office with un- redacted copies of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. 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. 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).

Connor B. Degan SPR25/0863 Page 5 April 11, 2025 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 Town is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Karen Crum