Mike Beaudet v. Barnstable County Sheriff's Office (SPR 20161038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 7, 2016 SPR16/1038 Matthew Murphy, Esq. General Counsel Barnstable County Sheriffs Office 6000 Sheriff Place Bourne, MA 02532 Dear Attorney Murphy: I have received the petition of Mike Beaudet of WCVB-TV appealing the response of the Barnstable County Sheriffs Office (Sheriffs Office) to a request forpublic records. G. L. c. 66 § IO(b); see also 950 C.M.R. 32.08(2). Specifically, on October 24, 2016 Mr. Beaudet requested a copy of records associated with a "boat purchased" with proceeds of a federal grant. In a November 14 email response, you provided a copy of the press release and a redacted copy of the first page of the responsive grant application. You informed Mr. Beaudet that the Sheriffs Office is withholding both the remaining pages of the grant application, as well as well as copies of any electronic logs of trips taken by the boat pursuant to federal laws operating through Exemption (a) and Exemption (n) of the Public Records Law. G. L. c. 4, § 7 (26) (a), (n). Mr. Beaudet appealed. The Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § IO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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 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

Matthew Murphy, Esq. SPR16/1038 Page 2 December 7, 2016 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. Exemptions cited in denying access to records Mr. Beaudet received a copy of the first page of the responsive federal grant application. The provided page was redacted to omit five paragraphs of text, as well as well as certain other information. No detail was provided, simply a statement to Mr. Beaudet indicating, "[y]ou will see the bottom of the page the requirement under federal law that the grant not be shared as a public record." Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute . G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). You also cite Exemption (n) to the Public Records Law to justify nondisclosure, stating that the locations and movements of the boat are a matter of security. You further explained disclosure of the responsive information could jeopardize public safety by forewarning parties of where the boat might be located. 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)

Matthew Murphy, Esq. SPR16/1038 Page 3 December 7, 2016 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. An attorney on my staff spoke with you regarding this appeal, and you explained you would provide a supplemental response to further explain the exemptions cited by the Sheriff's Office. Conclusion Whereas the Sheriff's Office intends to supplement its response, I will consider this administrative appeal closed with the proviso that the Sheriff's Office provides Mr. Beaudet with such response within ten (10) days, 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. Mr. Beaudet may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32:08(2). s, Supervisor of Records cc: Mike Beaudet