Joshua Miller v. Massachusetts Port Authority (SPR 20190783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 30, 2019 SPR19/783 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 initially 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). Previous appeal This request was the subject of a previous appeal. See SPR19/536 Determination of the Supervisor of Records (March 26, 2019). In my March 26th determination I ordered the Authority to provide Mr. Miller a response to the request in a manner consistent with the order, the Public Records Law and its Regulations. The Authority responded on April 12, 2019. Mr. Miller appealed and SPRl 9/783 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). 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 Carvalho, Esq. SPR19/783 Page2 April 30, 2019 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. Current appeal In my March 26th determination I found that the Authority had not met its burden to withhold the redacted portions in "the Massport Disaster Infrastructure Resiliency Planning Study [DRIP]" under Exemptions (a) or (n). In its April 1th response, the Authority continues to claim Exemptions (a) and (n) to withhold the information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records 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, 377 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. In its April 12th response you indicate "[t]he Authority redacted information that details the Authority's critical assets and provides a vulnerability assessment of those assets. The redacted information in the DRIP is exempt from disclosure pursuant to exemption (a) as it is considered Sensitive Security Information it is entirety and its disclosure would create a threat to public health and safety." The Authority references 49 CFR §§ 1520.5(a)(l), 1520.5(5), and

Ashley Carvalho, Esq. SPR19/783 Page 3 April 30, 2019 1520.5(12)(ii) and asserts "the redacted information of the DRIP, if released would: (1) be detrimental to the security of aviation transportation; (2) is a vulnerability assessment of vital infrastructures of aviation transportation; and (3) identifies systems and assets vital to aviation transportation that the incapacity or destruction of which would have a debilitating impact on transportation security." Despite its April lih response, it remains unclear what type of information has been redacted; specifically it is unclear if it pertains to the requested information regarding higher than usual water levels and how such information describes critical assets and vulnerability assessments. See 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 ... "). As a result, the Authority has not met its burden to establish how the redacted information may be withheld under 49 CFR §§ 1520.5(a)(l), 1520.5(5), and 1520.5(12)(ii) as they operate through Exemption (a). 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 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

Ashley Carvalho, Esq. SPR19/783 Page 4 April 30, 2019 determination given the context of the particular case." Id. With respect to its Exemption (n) claim, the Authority asserts "[f]urthermore, the redacted information in the DRIP is exempt from disclosure, pursuant to exemption (n), as the redacted information is a threat and vulnerability assessment and relates to security measures and emergency preparedness. The information could be used by terrorists to maximize damage by targeting the specific aviation critical infrastructures in a manner consistent with the vulnerabilities reported. A terrorist could also use the redacted information in the DRIP following a catastrophe and/or national disaster to attack the identified infrastructures and incapacitate aviation transportation." Although the Authority indicates that "the redacted information is a threat and vulnerability assessment and relates to security measures and emergency preparedness," I find it is unclear whether the redacted portions pertain to the requested information involving higher than usual water levels. As a result, if the information pertains to water levels, it is uncertain how such information fa the type that "a terrorist would find useful to maximize damage" as required under Exemption (n). 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. Conclusion Accordingly, the Authority is ordered to provide Mr. Miller responsive records 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. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the Exemptions (a) and (n), the Authority may provide this office with un-redacted copy of the responsive record in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Ashley Carvalho, Esq. SPR19/783 Page 5 April 30, 2019 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be advised that, unlike the materials provided for in camera review, any additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Miller