Andrew Gordon v. Andover, Town of - Fire Department (SPR 20180098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR Ecords February 5, 2018 SPR18/098 Chief Michael Mansfield Town of Andover-Fire Department 32 North Main Street Andover, MA 01810 Dear Chief Mansfield: Ihave received the petition of Andrew Gordon appealing the response of the Town of Andover Fire Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on December 15, 2017, Mr. Gordon requested "a copy of the blast design plan to the Elm Street site." The Department provided a response on January 2, 2018, in which it denied access to responsive records pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). Unsatisfied with the Department's response, Mr. Gordon petitioned this office and this appeal, SPR18/098, 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, § 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, § lO(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 ofthe responsive record. G. L. c. 66, § lO(d)(iv) (written response must "identifY any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). 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

Chief Michael Mansfield SPR18/098 Page 2 February 5, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § I O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January 2nd response In its January 2, 2018 response, the Department indicated that "in [its] reasonable judgment those plans should not be produced pursuant to Exemption (n) [because], [i]t cannot be disputed that the blast design plan is among the types of information contemplated by Exemption (n) ... "The Department indicated that "the information in the plan is something which, as stated by the Court, a 'terrorist would find useful to maximize damage' and in that sense jeopardize public safety all as described in that Supreme Judicial Court case." The Department indicated that the "blast design plan is not for public use, and could be misused by those seeking to utilize them with criminal intent or for a terrorist act." Further, the Department indicated that after consultation with the Police Department and the State Division of Fire Safety, disclosing the plan would likely jeopardize public safety because, (1) "[a] terrorist could use the information in that plan to determine when and how to conduct an act of terror which would inflict the maximum damage upon innocent victims;" (2) "[a] terrorist could also determine whether or not, and when, there are law enforcement personnel deployed as security;" and (3) "[a] residential area which has blasting devices is a prime target for a terrorist act for tactical and propaganda reasons." Exemption (n) The Department indicated it withheld responsive records pursuant to Exemption (n) of the Public Records Law. 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 of the custodian of records to exercise reasonable

Chief Michael Mansfield SPR18/098 Page 3 February 5, 2018 judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric.Res., 4 77 Mass. 280, 289-90 (20 17). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety.'" Id. at 289-90. The PETA decision further provides that "[b ]ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context ofthe particular case." Id. While it appears that the requested record may potentially fall under Exemption (n), which if disclosed could allow a terrorist to use the information on the plan to inflict damage upon innocent victims as the Department claims, I find the Department has not provided "sufficient factual heft" to establish how disclosure of the information is likely to jeopardize public safety or cyber security. Particularly, it is unclear how the information on the plan could assist a terrorist to "determine whether or not, and when there are law enforcement personnel deployed as security." It is additionally uncertain how the record can be withheld in its entirety. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Gordon responsive records 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. The Department may file a request for reconsideration of this determination within ten business days of the date ofthis determination letter.

Chief Michael Mansfield SPR18/098 Page 4 February 5, 2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Andrew Gordon