Colman Herman v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20171493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 30, 2017 SPR17/1493 Tori T. Kim, Esq. Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Kim: I have received the petition of Colman Herman appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested a "copy ofthe computer browser history of [an identified employee] for the period August 1, 2016 to January 31, 2017." The EOEEA provided a response on October 16,2017, in which it denied access to the records claiming the internet browser history is not a public record under the definition of a public record in the Massachusetts Public Records Law, and that even if it is a public record, it is exempt pursuant to Exemption (e) of the Public Records Law. Unsatisfied with the EOEEA's response, Mr. Herman petitioned this Office and this appeal, SPR17/1493, was opened as a result. 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. 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

Tori T. Kim, Esq. SPR17/1493 Page 2 October 30, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte EOEEA 's October 16th response In its October 16th response, the EOEEA indicated that "it does not deem the computer browser histories of employees to constitute a 'public record' within the meaning of [P]ublic [R]ecords [L]aw." The EOEEA indicated that browser histories, on their own, are not records 'made or received' by an officer or employee of a governmental entity, as they are constantly changing machine readable files automatically generated (based on user's activities) by the web browser program being used. For this reason, the Department of Homeland Security found that web browser histories are not governmental records under the federal Freedom of Information Act (FOIA), and therefore not subject to disclosure. See Department of Homeland Security Appeal Number 2014-HQAP-00068 ... " The EOEEA further indicated that, "even if browser histories fall within the general scope of public records, they would be exempt under G. L. c. 4, § 7(26)(e) [as] this provision exempts 'notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit."' The EOEEA explained that, "[b]rowser histories generated by individual user devices are 'personal' to the employee as that term is used under the [P]ublic [R]ecords [L]aw. This exemption serves to distinguish those work-related records that are personal to a particular employee from those that are maintained as part of the governmental entity's files. For the reasons stated above, EEA declines to provide any browser history from [the identified individual's] computer." Exemption (e) The EOEEA argues that even ifthe internet browser history is a "public record" subject to disclosure, it should be withheld pursuant to Exemption (e) of the Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee ofthe commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other

Tori T. Kim, Esq. SPR17/1493 Page 3 October 30, 2017 employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. The EOEEA in its response indicated that it believes that the internet browser history is not a public record because the record is not "made or received by an officer or employee of a governmental entity." The EOEEA is reminded that the definition of a public record in Massachusetts is "broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee ... " Therefore, the internet browser history created on a government-owned computer by a government employee is a public record. This is because, but for the employee's use of the computer, that information would not have been created. Further, I find the EOEEA has not demonstrated how the websites visited by an employee constitute personal reflections prepared by an employee on work-related activities or notes created to assist the employee in preparing reports for other employees of the governmental entity. Consequently, I find the EOEEA has not met its burden in establishing the internet browser history may be withheld pursuant to Exemption (e) of the Public Records Law. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, whereas I find that the requested employee internet browser history is a public record subject to disclosure, the EOEEA is hereby ordered to provide Mr. Herman with the responsive record in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman