Matthew Rocheleau v. Boston, City of - Fire Department (SPR 20181207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2018 SPR18/1207 Connie S. Wong City of Boston - Fire Department 115 Southampton Street Boston, MA 02118 Dear Ms. Wong: I have received the petition of Mathew Rocheleau appealing the response of the Boston Fire Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested "[a]ny/all Boston Fire Department's operations manual(s), which would include, but is not limited to, the department guidelines and standard operating procedures." The Department provided a response on June 24, 2018, denying 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. Rocheleau petitioned this office and this appeal, SPRl 8/1207, was opened as a result. Petitions to the Supervisor of Records Mr. Rocheleau is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ... and a complete copy of all responses associated with requests subject to the petition for appeal ... "950 C.M.R. 32.08(1)(g). 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). 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

Connie S. Wong SPR18/1207 Page 2 August 23, 2018 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 of the responsive record. 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. The Department's June 2lh response In its June 24, 2018 response, the Department indicates the request " ... is denied under the public safety exemption to the public records law, as the Department's SOPs (Standard Operating Procedures) contain information the disclosure of which would jeopardize public safety protocol and operations. MGL c. 4, § 7(26)(n). Information contained in the SOPs would be useful to a terrorist intent on causing harm to the public." 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 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 undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to 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."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017).

Connie S. Wong SPR18/1207 Page 3 August 23, 2018 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 of the particular case." Id. While it appears that portions of the requested records may potentially fall under Exemption (n), I find that the Department has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the records is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Id. at 290-91. Specifically, the Department did not provide any concrete examples of how the public's safety would be jeopardized by releasing the requested records. As such, I find that the Department has not met its burden in proving with specificity how the requested records may be withheld under Exemption (n). It is additionally uncertain how the records can be withheld in their 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, § IO(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). In his petition for appeal, Mr. Rocheleau attached a document that was previously provided to Boston Globe that lists the different SOPs the Department has on file. Mr. Rocheleau notes " ... the title of numerous documents seem to indicate they have nothing to do with public safety. For example, SOP 111 'Reports, Communication, Records,' SOP 207 'Personnel Accountability System' and SOP 402 'Paid Details.' If the department has concerns about the time/work it would take to review these documents for possible redactions, we would be willing to discuss potentially providing a list of which SOPs we would like first to help prioritize this process and/or narrowing our request to only certain SOPs." Based on the foregoing, the Department and Mr. Rocheleau are encouraged to communicate further to enable the Department to provide the requested records or non-exempt portions of the records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to withhold responsive records in their entirety, accordingly the Department is ordered to review the records, redact where necessary, and provide Mr. Rocheleau with responsive records, provided 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 of this determination letter.

Connie S. Wong SPR18/1207 Page 4 August 23, 2018 Sincerely, ~y~ Supervisor of Records cc: Matthew Rocheleau