Adam Nuñez v. Massachusetts State Police (SPR 20253222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2025 SPR25/3222 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Adam Nuñez appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2025, Mr. Nuñez requested the following records “[f]rom the dates of June 27, 2024 to July 2, 2024”[:] All communications made between the Commonwealth Fusion Center and the Salem Police Department regarding the “Community Encampment for Palestine” held in Salem, Massachusetts on June 29, 2024 and June 30, 2024. Including . . . [a]ny intelligence reports, Suspicious Activity Reports, threat assessments, documented monitoring efforts, and documented surveillance efforts made regarding the “Community Encampment for Palestine”. . . . The Department responded on October 20, 2025 and October 30, 2025. Unsatisfied with the Department’s responses, Mr. Nuñez petitioned this office and this appeal, SPR25/3222, 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). 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

Allison Mondello SPR25/3222 Page 2 November 17, 2025 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 Department’s October 20th and October 30th Responses In its October 20, 2025 response, the Department confirmed receipt of Mr. Nuñez’s request and provided the reference number P011354-102025 for tracking purposes. In its October 30, 2025 response, the Department advised that it “is unable to locate any email communications” responsive to Mr. Nuñez’s request “[b]ased upon the information [he] provided[.]” The Department additionally cited Exemption (n) of the Public Records Law to withhold four responsive records in their entirety. Current Appeal In his November 3, 2025 appeal, Mr. Nuñez objects to the Departments claims in withholding the four responsive records identified in its October 30th response. He states, “[t]his monitoring took place on a protest encampment that stated peaceful intentions and ended peacefully: fusion centers are meant for counterterrorism intelligence, not monitoring protected First Amendment rights. The public has a right to know what information was being gathered regarding this event in particular.” Mr. Nuñez additionally contends that the Department possesses additional responsive records. He states, “my request asks for all communications, not just email. Other communications could potentially include text messages, fax, mail, phone calls, and instant messages from third-party messaging apps.” 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

Allison Mondello SPR25/3222 Page 3 November 17, 2025 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 October 30, 2025 response, the Department stated that it “located Public Safety Planning Bulletin’s [sic] for June 27, 2024, June 28, 2024, June 29, 2024, and June 30, 2024 (4 total)” and explained that it was withholding the four responsive Public Safety Planning Bulletins “pursuant to M.G.L. c. 4, §7, cl. 26 (n). . . .” The Department provided the following in support of its position: The records relate to security measures, emergency preparedness, and threat or vulnerability assessments. An individual who sought to maximize damage to people in the Commonwealth would find this information useful insofar as it would provide that individual with detail about and insight into the way the Department undertakes to protect the public. Accordingly, in the reasonable judgment of the Department, disclosure of the withheld information would be likely to jeopardize public safety. The Department was unable to locate any further records. Based on the Department’s response, it is unclear how the four Public Safety Planning Bulletins, as described above, resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain

Allison Mondello SPR25/3222 Page 4 November 17, 2025 how the records are the type 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” between the two prongs of Exemption (n) inquiry). Additionally, the Department did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records are likely to jeopardize public safety or cyber security. See PETA, at 289-90. It is additionally unclear why the records may be withheld in their entirety. 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). Moreover, based on the Department’s response, in conjunction with Mr. Nuñez’s appeal, it is unclear whether the Department possesses additional records responsive to the request. Specifically, it is unclear if the Department possesses records responsive to “communications” apart from “just emails[,]” as specified by Mr. Nuñez. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Nuñez with a response to his 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. Mr. Nuñez may appeal the substantive nature of the Department’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Adam Nuñez