Saqib Hossain v. Hudson, Town of - Light and Power Department (SPR 20160595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 19, 2016 SPR16/595 Mr. Brian R. Choquette General Manager Light and Power Department Town of Hudson 49 Forest Avenue Hudson, MA 01749 Dear Mr. Choquette: I have received the petition of Saqib Hossain, Esq. of the law firm Burns & Levinson, LLP appealing the response of the Town of Hudson-Light and Power Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Richard A. Kanoff, Esq., also of Burns & Levinson, LLP, requested on behalf of his client Protect Sudbury, Inc., four (4) categories of records. The Department provided responsive records, along with a log that identifies withheld documents, including several under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). Attorney Hossain appealed, objecting only to the withholding of records pursuant to Exemption (n). 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, § 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 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 District 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Brian R. Choquette SPR16/595 Page 2 August 19, 2016 To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The Department's June 16 response The log included in the Department's June 16 response identifies several withheld records, including those withheld under Exemption (n). Only records withheld under Exemption (n) are the subject of this appeal. 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 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 undermine 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. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. The Department's log contains details such as the subject and dates of the records withheld under Exemption (n); however, the log does not provide the required specificity with respect to the applicability of the exemption to the withheld records. As a result, I find the Department has not met its burden under the Public Records Law with respect to a denial of access to records. 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).

Mr. Brian R. Choquette SPR16/595 Page 3 August 19, 2016 Conclusion I understand an attorney on my staff contacted you and you indicated the Department would provide a supplemental response regarding this matter in an effort to meet the specificity requirement. Accordingly, I will consider this appeal closed with the proviso that the Department provide Attorney Kanoff with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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 pre@sec.state.ma.us. cc: Mr. Richard A. Kanoff, Esq. Mr. Saqib Hossain, Esq.