Gerhardson, Jonathan v. Burlington, Town of - Police Department (SPR 20260729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0729 Jennifer Priest Records Access Officer Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Ms. Priest: I have received the petition of Jonathon Gerhardson appealing the response of the Burlington Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 20, 2026, Mr. Gerhardson requested: [1] Organization Audit in Flock. The report should include data logged from the period of December 1, 2025 until the date this request is processed. Per Flock’s documentation, the Organization Audit is available within the Insights tab and is defined as searches done within the agency. [2] Network Audit in Flock. The report should include data logged from the period of December 1, 2025, to the date this request is processed. Per Flock’s documentation, the Network Audit is available within the Insights tab and is defined as searches of the organization’s Flock network by any agency in the Flock System. Please do not redirect me to [a specified hyperlink], I am seeking the full audit logs. Please provide them unmodified in a computer readable format such as csv or xlsx. [3] A copy of Burlington Police Department’s LPR policy. [4] Documents sufficient to show the scope of services for any active contract agreements with the following companies: Flock Safety, Axon Enterprise, Inc., Skydio. [5] Any and all Memoranda of Understanding, Memorandum of Agreement, or other interagency agreements between this department and any federal agency 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

Jennifer Priest SPR26/0729 Page 2 March 12, 2026 (including, but not limited to, the Federal Bureau of Investigation (FBI), Department of Homeland Security Investigations (HSI) or Immigration and Customs Enforcement (ICE)) concerning participation in any federal law enforcement task force in effect from January 1, 2016, to the date this request is processed. [6] Any phone call logs, recordings, email correspondence, text messages, or chat logs related to Burlington PD working with Immigration and Customs Enforcement or Homeland Security Investigations for a period of March 1, 2025 until the date this request is processed. The Department responded on February 2, 2026. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR26/0729, 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. 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. Current Appeal In his appeal petition, Mr. Gerhardson contends: Burlington claims to have no records related to their business with Flock Safety because they do not exist. This is demonstrably false. See, for example [a specified hyperlink]. I can also verify that Burlington MA PD exists as an agency in the Flock Safety network through similar logs I have personally obtained from other agencies.

Jennifer Priest SPR26/0729 Page 3 March 12, 2026 Burlington Police claim to not have an LPR policy, which, given that they have claimed not to have LPR cameras, but clearly they do, is difficult to believe. They have claimed their use of force policy is exempt. Your office has previously ruled against similar police SOPs being exempt. Finally, they claim to have no records relating to their business with Skydio, or parent company Axon. This would be easier to believe if not combined with the above apparent falsehoods, as well as the agencies appearance in Skydio marketing collateral. [A specified hyperlink]. . . . Please order Burlington Police to find and produce the records they clearly have and have no right to withhold. Upon review of Mr. Gerhardson’s appeal petition, he does not appear to be appealing the redaction of records responsive to Item 5 of his request, under Exemptions (f) and (n) of the Public Records Law. Based on his appeal petition, I understand that Mr. Gerhardson appeals the Department’s response to Items 1 through 4 of his request, including the Department’s withholding of a record responsive to Item 4 under Exemption (n) of the Public Records Law. The Department’s February 2nd Response In its February 2, 2026 response, the Department stated, “[w]ith respect to portion 1 through 4 and 6 of your request, please be advised that this Department does not have possession, custody or control of the records requested, as the Burlington Police Department does not utilize Flock, LPRs, Skyidio or Axon Enterprise Cameras within its jurisdiction. . . .” The Department provided records responsive to Item 5 of Mr. Gerhardson’s request and cited Exemptions (f) and (n) of the Public Records Law to redact the “MOU titled ‘Tactical Diversion Task Force Agreement between the Burlington Police Department and the DEA.’” Regarding Item 4 of Mr. Gerhardson’s request, the Department stated that it “does utilize Axon Enterprise Tasers” and is withholding “Policy: ‘PAT-001 Use of Force’” under Exemption (n) of the Public Records Law. 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

Jennifer Priest SPR26/0729 Page 4 March 12, 2026 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 February 2nd response, to justify withholding the record responsive to Item 4 of the request under Exemption (n), the Department asserts: The records requested contain information on both lethal, less lethal, and non- lethal equipment (including the make and models) used by Law Enforcement officials during situations where the lives of private citizens, the public, suspects, and law enforcement personnel are at high risk. Releasing such information would undermine the public’s safety as it would relate to security measures and emergency preparedness. As a result, such information must be withheld under the law. Based on the Department’s response, it is unclear how the responsive record resembles the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the record resembles “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the record is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Further, the Department did not provide factual heft to support the withholding of the requested record in its entirety pursuant to Exemption (n). Specifically, the Department has not sufficiently explained

Jennifer Priest SPR26/0729 Page 5 March 12, 2026 how disclosure of the record is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. Additionally, it is unclear how the record can be withheld in its entirety. The Department must explain whether the record can be redacted so that 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 nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additional Records Based on the Department’s response, and in conjunction with Mr. Gerhardson’s appeal, it is unclear if the Department possesses additional records responsive to the request. Specifically, it is unclear whether the Department possesses additional records responsive to Items 1 through 4 of 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). 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, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Gerhardson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Gerhardson may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jonathon Gerhardson