Christopher P. Loreti v. Massachusetts School Building Authority (SPR 20180782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 13,2018 SPRl81782 Brian P. ICelley, Esq. Associate General Counsel - RAO Massachusetts School Building Authority 40 Broad Street, Suite 500 Boston, MA 02 109 Dear Attorney Kelley: I have received the petition of Christopher P. Loreti appealing the response of the Massachusetts School Building Authority (MSBA) to a request for public records. G. L. c. 66, § 1OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Loreti requested a copy of: the preliminary design plan for the re-build project pertaining to the Town of Arlington's (Town's) High School (high school). Responses - Communications (Prior to this appeal) In a May 8,201 8 email response, the MSBA indicated that it would provide the records to Mr. Loreti within fifteen (15) business days of receiving the request. On May 16'", you sent Mr. Loreti another email, again stating that the MSBA would provide a copy of the Town's Preliminary Design Program (PDP) for the high school. In response to your May 16" email, Mr. Loreti indicated that he made his request on May 4,201 8 to MSBA Records Access Officer (RAO), Siobhan Tolman. Mr. Loreti asked whether you could confirm that his May 4t'1 request was the start of the fifteen business days in which the MSBA stated it would provide the record. In a May 231d email, you asked Mr. Loreti whether he would be agreeable to an extension of time to June lSt.Y our email states, "[tlhe entire PDP is 1152 pages and I have to read through the entire document for school security information before I can release it to you." In his May ~ 2 3 e' m~ ail response, Mr. Loreti indicated that he was not agreeable to an extension, and that it was his belief that it should not be necessary for MSBA to read through the entire record, since parts of the record have already been released by the Town. Further, he states, "I believe the only thing you have to loolc through are building plans, and I believe I have 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

Brian P. Kelley, Esq. Page 2 June 13,2018 given the MSBA ample time to do that. Moreover, any such plans are purely hypothetical, as no design has been approved, it is not clear any of these plans will be." In the MSBA's final emails to Mr. Loreti prior to this appeal being opened, on May 23rd and May 25th,t he MSBA indicated that the review of the PDP is necessary to determine security information, that if disseminated could jeopardize public safety at the high school, and in particular to students and teachers. The MSBA claims that Exemption (n) of the Public Records Law applies to withhold the PDP in its entirety. As a result of MSBA's denial, Mr. Loreti petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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, 5 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, tj 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, 5 lO(b)(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). The MSBA 's June 5,2018 and June 8,201 8 supplemental responses The MSBA's June 5t" and June gth supplemental responses were provided to this office and Mr. Loreti to support the MSBA's Exemption (n) claim to withhold the PDP in its entirety, because the MSBA claims it has met its burden under the 2-part test in People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res, 477 Mass. 280 (2017). Exemption (n) 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, cyber security or other infrastructure located within the

Brian P. Kelley, Esq. Page 3 June 13,2018 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. Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. 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." PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the Id. proposition that disclosure of the record is 'likely to jeopardize public safety.'" at 289-90. The PETA decision further provides that "[blecause 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 a. determination given the context of the particular case." PETA also provides that "[tlhese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating 'reasonable judgment' and vice versa." JcJ. at 290. First prong sth The MSBA's June response states that the PDP is approximately 1200 pages in length and contains: "An evaluation of the District's Educational Program, which 'through the use of narratives, figures, and charts.. .shall describe and include.. .facility needs and proposed design features [including] Grade and school configuration policies; and Security and visual access requirements."' "An Initial Space Summary, which.. .must include.. .an itemization of each existing educational space" [and] "scaled floor plans of the existing facility and narrative descriptions of the reasons for any variance between the District's proposed programleducational spaces and the MSBA guidelines for each category of spaces."' "An evaluation of Existing Conditions through which 'the Designer will analyze existing conditions of all buildings that comprise the school, site, and environment.'"

Brian P. ICelley, Esq. Page 4 June 13,2018 "Site Development Requirements through which the Designer will analyze and submit 'existing site plan(s) including, but not limited to Structures and fences; Site access and circulation.. .Emergency vehicle access; Safety and security requirements;"' "A Preliminary Evaluation of Alternatives through which the Designer will present the 'results of the Preliminary Evaluation of Alternatives.. .in narratives, figures, and tables. . ." ' The MSBA indicates in its June 5thr esponse that Mr. Loreti is correct that school facility design records and construction records have been open and available to the public in the past. However, the MSBA posits, "security risks are dynamic and the measures to address those risks must evolve as the risks evolve. As a consequence, the shocking emergence and apparent increase in the number of random unexplained school shootings in the United States has forced entities like the MSBA to reconsider that past open approach." The MSBA indicates that Exemption (n) is not limited to building plans, but also to blueprints, plans, policies, procedures, schematic drawings, security and safety measures. Therefore, the MSBA contends, "[tlhe records in their possession are precisely the type of records that Exemption (n) sought to protect from public disclosure, and that release of this information to the public is likely to jeopardize public safety." (citing, PETA, at 290). The MSBA explains that "[mluch of a school project's design and construction documentation includes obvious and nuanced information that could help a school shooter more effectively carry out a random attack. This includes information that is directly tied to security such as the location, condition, effectiveness and operation of active security systems and information that can be used to better understand how a facility is internally and externally configured , but not limited to, locations of internal and external access and egress points, the location and configuration of educational and administrative rooms, configuration of well- trafficked congregation areas and the availability and location of sheltered sniper space with clear sight lines into well trafficked areas." The MSBA concluded that it has met the first prong of PETA by demonstrating that the record requested resembles the type of records listed as examples in the statute, and that the record is one a terrorist would find useful in maximizing damage. PETA, at 289-90. While the MSBA has demonstrated that it has met the first prong of PETA, the MSBA must also meet the second prong of PETA to withhold the record or portions of the record under Exemption (n). Second prong With respect to the second prong, the MSBA must provide the "factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety.'" Id. 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

Brian P. Icelley, Esq. Page 5 June 13,2018 reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." PETA, at 289-90. In support of its Exemption (n) claim, in its June 5" response the MSBA provided this office and Mr. Loreti with a copy of a Federal Bureau of Investigation (FBI) statistical breakdown of active shooter incidents that occurred in the United States from 2000 to 2017. In response, Mr. Loreti writes in his June 6t" email to this office, "most of the information in the PDP, none [ofl which MSBA claims can be made public, has already been made public." Mr. Loreti provided this office with a link to the PDP records that the Town has posted to its website. A review of the information provided to this office on June 6thr eveals that the Town has released PDP Items 1,2,3 and 5. One of the PDP sections provided to this office by Mr. Loreti, was a 62 page section entitled, 3.1.2, and the Town redacted two pages regarding "security and visual access requirements." This document was posted to the Town's website. It is my understanding that the MSBA was copied on Mr. Loreti's June 6the mail and provided with the links to the same sections of the PDP that were released by the Town. In the MSBA's June gthr esponse, it states, "[tlhe FBI statistics were offered by the MSBA, without rhetorical opinion, as a factual buttress to the MSBA's request that the Supervisor take Administrative Notice of the commonly understood fact that there has been a palpable increase in the frequency and injuries caused by Random School Shootings and that this increase is a source of great public concern.. . [mloreover, the number of attacks and related casualties from those attacks has steadily increased over that period; beginning in 200 1 with 1 attack and 7 casualties and concluding in 2017 with 30 attacks and 729 casualties. Most significantly, 20.8% of all of those documented Active Shooter Attacks occurred at Schools." The MSBA contends that the decision to withhold a public record is based on, "[flactual information embedded in the record, which could help a potential shooter make that terrifying risk a sickening reality is not based upon simple odds." The MSBA posits that "[tlhis is the concern that an RAO must balance against the publics' [sic] right to access to a public document that contains a potential security risk." The responsive PDP resembles the type of records enumerated in Exemption (n), and the MSBA had the burden to demonstrate that it exercised reasonable judgment in determining that disclosure of the record is likely to jeopardize public safety. PETA, at 290-291 (indicating that "as the resemblance between the record sought and the listed examples in exemption (n) decreases, the custodian's burden for demonstrating 'reasonable judgment' increases. Thus, when the requested record bears little or no resemblance to the listed examples, the custodian's burden for demonstrating that it exercised 'reasonable judgment' in determining that disclosure of the record is 'likely to jeopardize public safety' will be at its highest."). The PETA decision provides the following: "[iln this regard, it is well to note that exemption (n) is unique among the public records exemptions in its inclusion of the phrase 'reasonable judgment of the record custodian."' See generally G. L. c 4, 5 7, Twenty-sixth.

Brian P. Kelley, Esq. Page 6 June 13,2018 "Such language neither requires nor even invites any heightened level of deference to the records custodian's initial determination whether to disclose or withhold a record." PETA, at 291. In light of the above, as well as the statutory language in Exemption (n) that provides that the reasonable judgment of the record custodian is subject to review by the supervisor of public records, I find that the MSBA has not provided "sufficient factual heft" to conclude that a reasonable person would agree with the MSBA's decision to withhold the PDP, in its entirety, under Exemption (n) in this case. This is especially pertinent given the fact that the Town, which provided the MSBA with the PDP, has disclosed the majority of the PDP to the public. See PETA at 289-90. Therefore, I find that the MSBA has not met its burden of demonstrating that the entire PDP may be withheld pursuant to Exemption (n). Burden of specijicity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, 5 lO(b)(iv); see also Globe Newspaper Co. v. Police Cornm'r, 419 Mass. 852, 857 (1995); Flatley, 4 19 Mass. at 5 1 1. The MSBA did not meet its burden of demonstrating how Exemption (n) applies to withhold the record, in its entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The MSBA must produce any non-exempt, segregable portions of the public record. G. L. c. 66, 5 10(a). Petitions to the Supervisor for extension of time It is my understanding that the MSBA filed a petition with the Supervisor for an extension of time in providing records. However, given the pendency of this appeal, the Supervisor found it was unnecessary to issue a determination on the petition. See SPR181801 Determination of the Supervisor (June 12,201 8). If the MSBA seeks an extension of time to provide the responsive records, it may file for an extension of time within ten (1 0) business days of the date of the Supervisor's determination on this appeal. Conclusion Accordingly, the MSBA is hereby ordered to review the records, redact where necessary, and provide the records to Mr. Loreti in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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.

Brian P. Kelley, Esq. Page 7 June 13,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher P. Loreti Dennis M. Ryan, Esq., General Counsel