Michael Gordon v. Massachusetts Port Authority (SPR 20170323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 24, 2017 SPR17/323 Ashley K. Carvalho, Esq. Legal Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128-2909 Dear Attorney 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, Mr. Gordon requested the "standard operating procedures in place regarding the retention of video surveillance by MassPort at Logan International Airport." In responses dated February 10, 2017 and March 3, 2017 MassPort denied the request, claiming that the responsive record is exempt from disclosure in its entirety 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, § lOA(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. Exemption (n) Exemption (n) permits the withholding of: 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, Esq. SPR17/323 Page2 March 24, 2017 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 of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Records Management The requested record relates to standard procedures regarding the retention of video surveillance records. Under the Massachusetts Statewide Records Retention Schedule Number 01-17, Series Number F4-03(a), which applies to security and surveillance tapes, state records custodians are required to retain these kinds of records "until administrative use ceases." These types ofrecords consist of "agency program data captured as sound or moving images. Includes intake or dispatch telephone call recordings, digital messaging system messages, security video tapes, hearing testimony tapes, investigators audio and video tapes, special projects videos, meeting minutes and proceedings recordings, or other digital renderings." (emphasis added). MassPort's March 3rd response did not contain the detail required in a denial of access to public records. Instead, the response merely cites Exemption (n) and states "the information you seek requires disclosure of information relating to the security or safety or persons or buildings, transportation or infrastructure located within the Commonwealth." This office recognizes MassPort' s great responsibility to maintain the security of Logan International Airport. However, it is not clear how release of records outlining policies relating to records retention and adherence to the Statewide Records Retention Schedule would jeopardize the public's safety. As such, I find that MassPort has not met its burden in proving with specificity how the requested records may be withheld in their entirety under Exemption (n). Conclusion Accordingly, I will consider this appeal closed with the proviso that MassPort provide Mr. Gordon with the requested records or a response explaining with specificity how these requested records are not subject to disclosure. This response should address the issues relating to records management previously mentioned in this determination. A copy of any such response

Ashley K. Carvalho, Esq. SPRI 7/323 Page 3 March 24, 2017 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Gordon