Dobson, P.E., Wilson v. Massachusetts Port Authority (SPR 20150482)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 28,2015 SPRlS/482 Ms. Rachael Rollins, Esq. Chief Legal Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Rollins: I have received the petition of NECN Assistant News Director Ben Dobson appealing the response of the Massachusetts Port Authority (Massport) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in a request dated December 3, 2014, Mr. Dobson requested a copy of a video recording depicting a specifically identified incident that occurred at Logan International Airport. After an initial acknowledgment, no further response was provided. Subsequent to a follow up email dated April 21, 2015 and a letter dated May 13, 2015, Mr. Dobson received a denial dated May 20, 2015. In the May 20 letter you declined to state whether any responsive records exist; however, you also cited Exemption (n) of the Public Records Law to justify nondisclosure. G. L. c. 4, § 7(26)(n). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is important to note that Massport' s response was not made in compliance with the timeliness requirements of the Public Records Law and its Access Regulations. While an essentially form letter response was provided on December 8, 2014, no substantive response was provided until May 20, 2015, one-hundred and sixty-eight days after Mr. Dobson's request. G. L. c. 4, § 7 (26); 950 C.M.R. 32 et seq. A record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (1 0) calendar days. G. L. c. 66, § 1 O(a); 950 C.M.R. 32.05(2). Massport is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Access Regulations. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Rachael Rollins, Esq. SPR15/482 Page Two July 28, 2015 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In your May 20 denial you stated "[w]ithout confirming or denying the existence ofvideo camera(s) at the location(s) you have specified, any such records that may exist, are security sensitive and exempt from disclosure under [G. L.] c. 4, § 7(26)(n). Accordingly, your request must be denied." Exemption (n) Exemption (n) permits the withholding of: 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 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 (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, §7 (26)(n) Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Your May 20 response does not contain the specificity required in a denial of access to public records. Instead, Massport's response merely cites Exemption (n) without any further explanation as to the exemption's applicability to the requested records. Massport is not permitted to issue a blanket denial without providing any further information with respect to the requested records. In addition, Mas sport does not provide any concrete examples of how the public's safety would be jeopardized by releasing the requested video. Further, I find Mas sport has not satisfied its burden of proving with specificity why the requested records have not been made available by failing to clearly indicate whether the requested records exist and are in its possession. As such, I find that Massport has failed to meet its burden in proving with specificity how the requested records may be withheld in their entirety

Ms. Rachael Rollins, Esq. SPR15/482 Page Three July 28, 2015 under Exemption (n). See Reinstein v. Police Comm'r ofBoston, 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). Accordingly, whereas Massport has not overcome the presumption that the requested records are public, Massport is hereby ordered, within ten (10) days ofthis order, to provide Mr. Dobson with the requested records. IfMassport maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days, provide to Mr. Dobson a written explanation, with specificity, how a particular exemption applies to each record. 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. Such a response must confirm whether the requested records exist and are in Massport's possession. If the requested records are not in Massport's possession, it must clearly indicate such in its response. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at ~====::n:-=~"-"' Supervisor of Records cc: Mr. Ben Dobson