Joshua Miller v. Massachusetts Port Authority (SPR 20190536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 26, 2019 SPR19/536 Ashley K. Carvalho, Esq. Senior Legal Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Carvalho: I have received the petition of Joshua Miller of the Boston Globe appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Miller requested "maps, charts, illustrations, photo-illustrations, graphics, videos and other visual presentations created after Jan. 1, 2010 that depict higher-than-normal water levels severe enough to impact the normal operation of Logan International Airport" and "all documents created after Jan. 1, 2014 ... that forecast/analyze/project/model higher-than usual water levels at and/or around and/or to Logan International Airport. ... " The Authority responded on March 11, 2019 by providing records with portions redacted under Exemptions (a) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (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. 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. SPR19/536 Page2 March 26, 2019 Appeal In its March 11th response the Authority provided several responsive records. It also provided a copy of "the Massport Disaster Infrastructure Resiliency Planning Study" with portions redacted under Exemptions (a) and (n). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. 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.

Ashley K. Carvalho, Esq. SPR19/536 Page 3 March 26, 2019 G. L. c. 4, § 7 (26)(n). 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.'" People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). 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. Burden of specificity In its March 11th response the Authority asserts that with respect to the Massport Disaster Infrastructure Resiliency Planning Study, it" ... redacted information that details the Authority's critical assets and provides a vulnerability assessment of those assets ( chapter 5 & 6), pursuant to M.G.L. c. 4, §7(26)(a) and (n)." In his appeal petition Mr. Miller indicates "I believe the redaction was too broad and excising both chapters of the assessment is a very excessive interpretation of the exemptions." He also notes, in part, "[p ]ublic disclosure of a vulnerability assessment of the airport's critical assets to climate change flooding and how much it would cost, I submit, could not reasonably be seen to as likely to jeopardize public safety. That is to say, the release of detailed information about how the airport runways and other critical assets might flood if a hurricane hits East Boston and how much it would cost would have no material impact on the safety" ( emphasis in original). With respect to its Exemption (a) claim, the Authority has not provided the statute it claims specifically or by necessary implication exempts the redacted information from disclosure. With respect to Exemption (n), although the Authority asserts the redacted information " ... details the Authority's critical assets and provides a vulnerability assessment of those assets .... ," it is unclear how such information resembles the records listed as examples in the statute as contemplated in PETA . It is also uncertain how such information is the type that "a terrorist would find useful to maximize damage" as required under Exemption (n).

Ashley K. Carvalho, Esq. SPR19/536 Page 4 March 26, 2019 Further, I find the Authority has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the redacted information is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Id. at 290-91. For example, it is unclear if the redacted information pertains to issues involving water levels, and if so, how disclosing such information is likely to jeopardize public safety or cyber security. Conclusion Accordingly, the Authority is ordered to provide Mr. Miller a response to the request in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Joshua Miller