Mike Beaudet v. Massachusetts Port Authority (SPR 20191223)

i \ "'4' .~ The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen1isor ofR ecords July 1, 2019 SPR19/1223 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 Mike Beaudet of WCVB appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Beaudet requested "a copy of the screening video of [identified individual] from Logan Airport on July 30, 2018 at approximately 2: l 5pm that was reviewed by TSA and State Police." The Authority responded on June 28, 2019 by denying access to the record under Exemption (a) of the Public Records Law. 0. L. c. 4, § 7(26)(a). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all goverllll1ental records are public records. 0. L. c. 66, § 1O A( d); 950 C.M.R. 32.03( 4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical for111 or characteristics, 111ade or received by any officer or employe.e of any town of the Coll1ll1onwealth, unless falling within a statutory exemption. 0. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exe111ption in order to withhold a requested record. 0. 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) (c ustodian has the burden of establishing the applicability of an exe111ption). To meet the specificity require111ent a custodian must not only cite an exemption, but must also state why the exe111ption applies to the withheld or redacted pot1ion of the responsive record. Appeal In its June 181 h response the Authority indicates "[w]ithout confirming or denying the existence of video camera(s ) in the location( s) you specified, please be advised that your request has been denied pursuant to Mass. Gen. Laws Ch. 4 §7(26)(a)." One Ashbmion 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. SPR19/1223 Page2 July l, 2019 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 categoty 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. Despite its June 18111 response, it is unclear whether the Authority possesses responsive records. Further, the Authority did not provide the relevant statute it claims operates through Exemption (a) to allow it to withhold the responsive record, if any. See G. L. c. 66, § 1O (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 exemption or exemptions upon which the withholding is based ... "). As a result, I find the Authority has not met its burden to show how the responsive record may be withheld in its entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly constrned and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Co11cl11sio11 Accordingly, the Authority is ordered to provide Mr. Beaudet with a response to the request, provided 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.

Ashley Carvalho, Esq. SPR19/1223 Page 3 July I, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mike Beaudet