Michael Gordon v. Massachusetts Port Authority (SPR 20170250)

The Commonwealth of Massachusetts 'William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 2, 201 7 SPR17/250 Ashley K. Carvalho Records Access Officer Massachusetts Port Authority One Harborside Drive Suite 200S East Boston, MA 02128-2909 Dear Ms. Carvalho: I have received the petition of Michael Gordon appealing the response of the Massachusetts Port Authority (Massport) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Michael Gordon requested the "standard operating procedures in place regarding the retention of video surveillance by Massport at Logan International Airport." In a letter dated February 10, 2017 Massport denied his request, claiming that the responsive record is exempt from disclosure in its entirety. Massport withheld this information under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(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, § 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 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, § 1O (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. 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

Ashley K. Carvalho SPR17/250 Page 2 March 2, 20 17 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, cyber security 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 (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. 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. Mas sport's response states that the responsive records may be withheld under Exemption (n), but does not give any reasoning. Massport has failed to provide any concrete examples of how the public's safety would be jeopardized by releasing the "standard operating procedures in place regarding the retention of video surveillance by Massport at Logan International Airport." As such, I find that Massport has not met its burden in proving with specificity how the requested records may be withheld under Exemption (n). Subsequent to an intervention by a member of my staff, this office was notified that Massport has agreed to provide a supplemental response to Mr. Gordon. This response will go into further detail of how and why Exemption (n) applies to the requested documents. Accordingly, I will consider this appeal closed with the proviso that Massport provide Mr. Gordon with a response to the request, provided 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. Gordon may appeal the substantive nature ofMassport's response within ninety (90) days. See 950 C.M.R. 32.08(1 ). Sincerely,

Ashley K. Carvalho SPR17/250 Page 3 March 2, 20 17 Rebecca S. Murray Supervisor of Records cc: Michael Gordon