Jacob Schles v. Massachusetts College of Art and Design (SPR 20253410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2025 SPR25/3410 Brendan O’Bryan Records Access Officer Office of the President Massachusetts College of Art and Design 621 Huntington Avenue Boston, MA 02115 Dear Mr. O’Bryan: I have received the petition of Jacob Schles appealing the response of the Massachusetts College of Art and Design (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 1, 2025, Mr. Schles requested the following records: [S]ecurity camera footage from the First Floor Tower Building, specifically any cameras covering the rear entrance near the FabLab that could have captured an incident involving a protest, on 4/24/2025, from 3:50 pm to 4:05 pm. . . . [A]lso . . . any recorded radio transmissions from [an identified individual] on 4/24/2025, from 3:50 pm to 4:05 pm. Previous Petition and Appeal This request was the subject of a previous petition from the College and a previous appeal. See SPR25/2412 Determination of the Supervisor of Records (August 19, 2025) and SPR25/3008 Determination of the Supervisor of Records (October 27, 2025). In my October 27th determination, I ordered the College to clarify its claims under Exemption (n) of the Public Records Law to withhold records responsive to the portion of Mr. Schles’ request seeking “security camera footage from the First Floor Tower Building[.]” Subsequently, the College responded on November 10, 2025. Unsatisfied with the College’s response, Mr. Schles petitioned this office, and this appeal, SPR25/3410, 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 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

Brendan O’Bryan SPR25/3410 Page 2 December 3, 2025 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. 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 College’s November 10th Response In its previous September 8, 2025 response, the College provided records responsive to the portion of Mr. Schles’ request seeking “any recorded radio transmissions from [an identified individual]” as described above. The College additionally claimed Exemption (n) of the Public Records Law to withhold footage responsive to the portion of the request seeking “security camera footage from the First Floor Tower Building” in its entirety. In its November 10, 2025 response, the College provided additional information to support its claims under Exemption (n) for withholding the responsive footage and further claimed that the footage is exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), as well as Exemption (c). Current Appeal In his appeal, Mr. Schles “[requests] that the Supervisor be made aware of the college’s persistent refusal to comply with [his] records request, and compel the college to comply.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Brendan O’Bryan SPR25/3410 Page 3 December 3, 2025 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the College referenced the Family Educational Rights and Privacy Act (FERPA) to withhold the responsive footage. FERPA provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . . 20 U.S.C. § 1232g(b)(1). In addition, “education records” under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g(a)(4)(i-ii). In its response, under Exemption (a), the College explained that FERPA “exempts records related to student discipline, as they are educational records that contain information maintained by the College that is directly related to the student.” Upon review, it is unclear how the responsive footage constitutes “education records” as defined under FERPA. Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency

Brendan O’Bryan SPR25/3410 Page 4 December 3, 2025 or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The College must clarify this matter. Exemption (c) Exemption (c) permits the withholding of: 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). Second Clause - Privacy Analysis under the second clause of 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 clause 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). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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 response, under Exemption (c), the College advised, “[t]he breach of the College’s building involved employees and students and resulted in disciplinary proceedings for both.” Further, the College explained, “the images of the individuals who were involved in the breach

Brendan O’Bryan SPR25/3410 Page 5 December 3, 2025 would constitute an unwarranted invasion of privacy, as it would be easy for anyone with knowledge of the employee and student body to identify the students and employees involved in the breach.” The College additionally advised in its response that the “footage has not been disseminated” given “the security risk associated with releasing the . . . footage.” Although the College has explained that the footage is not available from other sources, based on the College’s response, it remains unclear how the responsive footage contains intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the College did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The College must clarify. 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.’” PETA, 477 Mass. 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.

Brendan O’Bryan SPR25/3410 Page 6 December 3, 2025 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 response, under Exemption (n), the College stated the following: In its [previous] . . . response, the College explained . . . that “the security footage . . . are records related to the security and safety of the College’s building and the disclosure of such footage could expose the capabilities of the security system, expose the positions of security cameras, and expose the area captured by the cameras and where the cameras do not reach, which in turn jeopardizes the effectiveness of the security system in place at the College.” The College further clarified that “production of the security camera footage could result in exposing security vulnerabilities that could be exploited, jeopardizing the safety of the campus community. . . .” . . . [T]he College further maintains that public safety could be put at risk if the camera footage is produced. This conclusion is supported by the fact that the breach of the building in question was the result of a security vulnerability identified by some of the participants who participated in the breach. This security vulnerability, which was captured on camera, would be exposed for others to further exploit--and, given that this security vulnerability was already exploited, the chance of another occurrence is high. For purposes of context, the College’s building was breached at an access point strictly limited to a few employees. The camera surveillance shows the security breach, including how it was accomplished, the location of employee offices in relation to where the building was breached, and the placement (and absence) of security measures to prevent such unauthorized access. The College is an urban campus with two public entries. . . . Despite public access points with security on site, unauthorized intruders, including students and employees, in this instance monopolized a security vulnerability, breaching the building before they could be detected. . . . [T]he camera footage depicts the actual breach and could provide a template for how evading detection in the future can be accomplished. . . . Access to the security camera footage would aid an ill-motivated person in identifying the specific positioning of the cameras at the rear entrance of the Tower Building and the camera range covering the rear entrance of the building and the adjoining areas, exposing “blind spots,” or areas not covered by the cameras. The security camera footage would also inform an ill- motivated individual of the presence or lack of security stations, the response time of security and observable traffic patterns, all of which would allow such a person to breach the building with the possibility of not being detected. In the event of a breach, the College’s building and its property could be compromised, including

Brendan O’Bryan SPR25/3410 Page 7 December 3, 2025 expensive equipment contained in its FabLab, but even worse, student and employee safety could be undermined. . . . . . . Finally . . . [t]he security camera footage is inherently integrated in that it cannot be redacted or cropped without revealing the camera placement, angles and camera capabilities, including blind spots. To the extent the responsive footage contains information concerning a breach of “the [College’s] First Floor Tower Building” at “an access point strictly limited to a few employees[,]” I find the College has shown how the footage is the type of record contemplated under Exemption (n). Further, where the College has explained that portions of the footage would provide information on how “[the breach] was accomplished, the location of employee offices in relation to . . . [the breach], and the placement (and absence) of security measures to prevent such unauthorized access[,]” and which could potentially result in harm to “expensive equipment contained in its FabLab” and to “student and employee safety[,] I find the College may withhold these portions pursuant to Exemption (n). However, based on the College’s response, I find that the College has not met its burden to withhold the responsive footage, in its entirety, under Exemption (n). Specifically, it is unclear how portions of the responsive footage showing “camera placement, angles and camera capabilities” constitutes information a terrorist would find useful to maximize damage. Additionally, it is unclear how the disclosure of this information is “likely to jeopardize public safety.” See PETA, at 289-90. The College must clarify these matters. Conclusion Accordingly, the College is ordered to provide Mr. Schles 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. Schles may appeal the substantive nature of the College’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jacob Schles