Kathy Souza v. Somerset, Town of - Town Clerk (SPR 20251257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2025 SPR25/1257 Caitlin Hadala Town Clerk Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Ms. Hadala: I have received the petition of Kathy Souza, appealing the response of the Town of Somerset (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 2025, Ms. Souza requested “… the video footage of town hall for yesterday’s date, 4/15/2025 from 6:00 am-11:59 pm.” On April 18, 2025, Ms. Souza modified her request to seek video footage for the hours 9:00 PM to 11:00 PM. The Town responded on May 5, 2025. Unsatisfied with the response, Ms. Souza petitioned this office and this appeal, SPR25/1257, 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. 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. 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

Caitlin Hadala SPR25/1257 Page 2 May 8, 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 Town’s May 5th Response In its May 5, 2025 response, the Town withheld responsive records pursuant to Exemptions (b) and (n) of the Public Records Law. Current Appeal In her May 6, 2025 petition to this office, Ms. Souza contended that Exemptions (b) and (n) did not justify the withholding of responsive records. Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). In its May 5th response, the Town stated: The security recordings from the Somerset Town Hall security cameras requested are exempt from disclosure pursuant to Exemption (b) of the Public Records Law, as such security camera records relate solely to internal practices of the Town, and disclosure thereof would directly and detrimentally interfere with the proper performance of the Town’s necessary governmental functions, including, but not limited to, employee and public safety. Specifically, as discussed in detail [below], disclosure could allow circumvention of the purposes for which the

Caitlin Hadala SPR25/1257 Page 3 May 8, 2025 security cameras have been installed by publicly disclosing such security measures. Based on the Town’s response, I find that it has not met its burden to show that the requested records are related solely to the Town’s internal personnel rules and practices, nor how disclosure thereof would hinder the proper performance of the Town’s necessary governmental functions. The Town must clarify these matters. 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. 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.” Id. at 290. In its May 5th response, the Town stated:

Caitlin Hadala SPR25/1257 Page 4 May 8, 2025 Here, after careful review by the Town of this request and its security recordings requested, please be advised that the records sought are akin to those enumerated in Exemption (n), as they specifically pertain to the security measures and protocols taken by the Town at and around Town Hall to ensure workplace and public safety for Town employees and members of the community. Specifically, the security camera footage captured by the Town, as requested, is recorded solely for the purpose of protecting the public safety, including that of Town employees, visitors and members of the public. Publicly releasing specific security camera footage from Somerset Town Hall will provide direct insight into specific employees travel to/from work, which could implicate employee safety considerations if publicly disclosed. Finally, release of the security recordings could alert someone looking to undermine the security of Somerset Town Hall by mapping areas where cameras do not have coverage or capture image based on their placement and angles. Therefore, after careful review of this request and based on the reasonable judgment of the Town, it has determined in its discretion that the public disclosure of such information could jeopardize the safety of Town employees and the public. Based on the Town’s response, it is unclear how the requested video footage resembles the records listed under Exemption (n). See PETA, 477 Mass. at 289. Specifically, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” relating to security measures, which “a terrorist would find useful to maximize damage[,]” nor has the Town explained how disclosure of the records is likely to jeopardize public safety or cyber security. Id. at 289-90. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. Id. at 290- 91. Further, the Town did not provide sufficient factual heft to support the withholding of the requested records under the second prong of Exemption (n). The Town must clarify these matters. The Town must also clarify whether segregable portions of the responsive records can be provided. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Town is ordered to provide Ms. Souza 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. Ms. Souza may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Caitlin Hadala SPR25/1257 Page 5 May 8, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Kathy Souza Mark Ullucci