Adam Breuer v. Massachusetts Port Authority (SPR 20191748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. MmTay Supervisor of Records September 10, 2019 SPR19/1748 Margarita Bardales Legal Assistant - Records Access Officer Massachusetts Port Authority Legal Department One Harborside Drive, Suite 200S East Boston, MA 02128-2909 Dear Ms. Bardales: I have received the petition of Adam Breuer appealing the response of the Massachusetts Port Authority (Massport) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Breuer requested: "TSA security video camera footage showing [himself] and [his] carry-on bags going through security at: Boston Logan Airport, Concourse C, Security line for gates including [G]ate ClO, Third security line from the left, on Saturday, March 16, 2019, between 8:15 PM and 8:33 PM. I am specifically interested in security video footage that shows my bag on the output side of the carry-on bag X-ray conveyor before I went through to retrieve it." In its initial response on March 21, 2019, Massport requested further information from Mr. Breuer, stating, "[p]rovide a description of the passenger and luggage (color, patterns, clothing, etc.). On March 2211a, via email, ML Breuer provided you with further information, describing the luggage, and clothing worn that day. After not receiving any response to his April emails to follow-up on the status of his request, he received a May 28, 2019 response from Ashley K. Carvalho, Esq., Legal Counsel at Massport. In her May response, Attorney Carvalho asserts, "without 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)." As a result of the denial, Mr. Breuer petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

Margarita Bardales SPR19/1748 Page 2 September 10, 2019 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, § 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 exemption or exemptions upon which the withholding is based ... "); 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). 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. Exemption (a) Exemption (a), known as the statutory exemption, pennits 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, 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

Margarita Bardales SPR19/1748 Page 3 September 10, 2019 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. With its May 28th response, I find that Massport did not meet its burden of specificity in claiming Exemption (a) because it did not expressly provide the federal or state law that it claims allows Massport to withhold the records through Exemption (a). Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Massport did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemption (a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Massport must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Furthennore, Massport did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). It is my understanding that a Public Records Division attorney contacted you regarding this request and appeal. Conclusion Accordingly, Massport is ordered to provide Mr. Breuer 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Breuer