Saqib Hossain v. Hudson, Town of - Light and Power Department (SPR 20160835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 21, 2016 SPR16/835 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 ofSaqib Hossain, Esq. ofthe law firm Bums & 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 § 10(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. Previous appeal This request was the subject of a previous appeal. See SPR16/595 Determination of the Supervisor of Records (August 19, 2016). The Department provided responsive records, along with a document index identifying 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). In SPR16/595 I found the log provided by the Department contained details such as the subject and dates of the records withheld under Exemption (n); however, the log did not provide the required specificity with respect to the applicability ofthe exemption to the withheld records. I closed appeal SPR16/595 with the proviso that the Department provide Attorney Kanoff with a revised, more detailed, response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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

Mr. Brian R. Choquette SPR16/835 Page2 October 21, 2016 Current appeal In compliance with my August 19 order the Department provided Attorneys Kanoff and Hossain with a more detailed response, dated September 3, 2016, regarding its intent to withhold the remaining responsive records pursuant to Exemption (n). Attorney Kanoff appealed. 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 ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. In its September 3 response the Department explained that the Federal Energy Regulatory Commission (FERC) has defined Critical Energy Infrastructure Information (CEil) as "Specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that: (1) relates details about the production, generation, transportation, transmission, or distribution of energy; (2) could be useful to a person in planning an attack on critical infrastructure; (3) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552 (2000); and (4) does not simply give the general location ofthe critical infrastructure." Documents withheld and deemed CEil have been identified to Burns & Levinson in prior communications. In its September 3 letter, you explain the Department chooses to "withhold these CEil documents because [you] believe their release is likely to jeopardize public safety. The CEil documents contain plans, procedures, structures, and facilities that identify vulnerabilities and/or their associated solutions within the utility transmission system that could be exploited to cause public harm and are not subject to Public Records acts." Right ofA ccess Please note that the personal status of Protect Sudbury in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record

Mr. Brian R. Choquette SPR16/835 Page 3 October 21, 2016 requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Conclusion The Department's response contains the required specificity with respect to the applicability of the Exemption (n) to the withheld records. As a result, it is the finding of this office that the Department may withhold the requested records from disclosure pursuant to Exemption (n) of the Public Records Law. cc: Mr. Richard A. Kanoff, Esq. Mr. Saqib Hossain, Esq.