Adam Nuñez v. Department of State Police (SPR 20253600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2025 SPR25/3600 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”. . . . Previous Appeal This request was the subject of a previous appeal. See SPR25/3222 Determination of the Supervisor of Records (November 17, 2025). In my November 17th determination, I ordered the Department to clarify its claims under Exemption (n) of the Public Records Law for withholding four responsive records, in their entirety, and to clarify whether it possesses additional responsive records. Subsequently, the Department responded on December 2, 2025. Unsatisfied with the Department’s response, Mr. Nuñez petitioned this office, and this appeal, SPR25/3600, 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

Allison Mondello SPR25/3600 Page 2 December 16, 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. 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 December 2nd Response In its previous 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[,]” and cited Exemption (n) of the Public Records Law to withhold four records responsive to “Public Safety Planning Bulletin’s [sic] for June 27, 2024, June 28, 2024, June 29, 2024, and June 30, 2024[,]” in their entirety. In its December 2, 2025 response, the Department advised the following regarding the four records it previously identified as responsive to Mr. Nuñez’s request and withheld under Exemption (n): In the October 30, 2025 response the Department indicated it “located Public Safety Planning Bulletin’s [sic] for June 27, 2024, June 28, 2024, June 29, 2024, and June 30, 2024 (4 total).” Please be advised, for clarification the Department confirmed that the 4 Public Safety Bulletin’s [sic] were not submitted by a Department member to Salem Police Department. As a result, the 4 bulletins are not responsive to your request, and the Department reiterates that it does not possess any records responsive to your request. To the extent you are requesting the 4 Public Safety Bulletin’s [sic], the Department maintains they are exempt pursuant to M.G.L. c. 4, §7, cl. 26 (n), the safety and security exemption. The Department further stated that it was “unable to locate any responsive communications or any records responsive to [the] request for records. . . .” Despite clarifying that it did not possesses any responsive records, the Department also “[supplemented] its October 30, 2025 response. . .” and provided the following additional information regarding its previous claims under Exemption (n) for withholding the four records it identified in its October 30, 2025 response as responsive to Mr. Nuñez’s request:

Allison Mondello SPR25/3600 Page 3 December 16, 2025 The Massachusetts State Police Fusion Center “is the principal state repository for threat-related information, including criminal activity, threats to public safety, and terrorist activity…. Fusion centers are focal points for the sharing of information between federal agencies and state and local governments. Information is gathered at the state and local levels; analyzed; and, when warranted, disseminated to the appropriate federal, state, local, tribal, or private-sector officials. In turn, federal agencies such as the Federal Bureau of Investigation and DHS share intelligence and analysis with fusion centers, which may issue bulletins, briefings, and assessments on general criminal or intelligence information to their stakeholders, alerting them to emerging threats. In accordance with the Fusion Center Guidelines issued jointly by the US Department of Justice and DHS, CFC develops an annual production plan outlining the types of intelligence products it intends to provide to stakeholders…CFC distributes other intelligence products, including periodic bulletins, to stakeholders regarding police officer safety, situational awareness, high-profile-incident reports, and opioid-related arrests”. . . . The Commonwealth Fusion Center’s mission is to collect and analyze information to produce and disseminate actionable intelligence to stakeholders . . . in order to identify, disrupt or deter criminal activity and terrorism, both domestic and international. . . . An individual who sought to maximize damage to people in the Commonwealth would find the information in the Bulletin’s [sic] useful insofar as it would provide that individual with detail about and insight into the way the Commonwealth Fusion Center undertakes to protect the public. It would provide a terrorist with a list of all public gatherings in the Commonwealth of Massachusetts on a particular day, regardless if the public is aware of the gathering in advance. This could jeopardize public safety by placing members of the public in danger and provide criminals with information to strategize a plan of attack on persons and infrastructure within the Commonwealth. Also, a terrorist would be able to determine where law enforcement resources may potentially be devoted to throughout the Commonwealth to help strategize a plan of attack anywhere in the Commonwealth. Accordingly, in the reasonable judgment of the Department, disclosure of the withheld information would be likely to jeopardize public safety. . . . Current Appeal In his December 3, 2025 appeal, Mr. Nuñez states that the Department’s December 2, 2025 response “is, in effect, a rejection of [his] public records request.” He further contends, [if] the Public Safety Planning Bulletins were not responsive to the original October 20 request, I am struggling to understand why they would be brought up in the October 30 response to my original request in the first place.”

Allison Mondello SPR25/3600 Page 4 December 16, 2025 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.’” 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. Burden of Specificity; Records in Existence; Possession, Custody, or Control The Department’s response did not contain the specificity required in a denial of access to public records. Specifically, the Department has not met its burden to withhold the four “Public Safety Planning Bulletin’s [sic]” pursuant to Exemption (n). Although the Department explains the work conducted by and the mission of the Massachusetts State Police Fusion Center, it remains unclear how the information contained in the four records the Department identified as responsive to the request in its previous response resemble the records listed in the statute. See id. at 289. Please note that in cases where the records bear little resemblance to the types listed in

Allison Mondello SPR25/3600 Page 5 December 16, 2025 the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the Department has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the four records is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. It is additionally unclear how the four records, in their entirety, may be withheld under Exemption (n). The Department must explain whether segregable portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is additionally unclear from the Department’s response and previous response if it possesses any records responsive to Mr. Nuñez’s request. Specifically, it is unclear why the Department previously identified “Public Safety Planning Bulletin’s [sic] for June 27, 2024, June 28, 2024, June 29, 2024, and June 30, 2024[,]” as responsive to the request and subsequently stated in its December 2nd response that “the 4 bulletins are not responsive to [the] request[.]” 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, I find that the Department did not satisfy its burden in responding to this records request. The Department must use its superior knowledge of the records and clarify whether it possesses records responsive Mr. Nuñez’s request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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