Will Clark v. Agawam, Town of - Law Department (SPR 20191818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

September 20, 2019 SPR19/1818 Stephen Buoniconti, Esq. Town of Agawam 36 Main Street Agawam, MA 01001

Dear Attorney Buoniconti:

I have received the petition of William Clark appealing the response of the Town of Agawam (Town) to his request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Clark requested “November, 1985 Route 57 Interceptor Sewer Report prepared by Tighe & Bond.”

Previous Appeal

This request was the subject of a previous appeal. See SPR 19/1702 Determination of the Supervisor of Records (September 5, 2019), I closed SPR 19/1702 upon notification that the Town provided a response to the request on August 21, 2019. Unsatisfied with the Town’s August 21* response, Mr. Clark petitioned this office and this appeal, SPR 19/1818, 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, § 10A(d); 950 C.MLR. 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, § 10(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

Stephen Buoniconti, Esq, SPR19/1818 Page 2 September 20, 2019

Appeal

The Town’s August 21" response indicates that it withheld the responsive records pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n).

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 determination given the context of the particular case.” Id.

The Town asserts “[t]he requested public records contain technical descriptions, plans, and schematics of the Town’s sanitary sewer system. The release of this information would endanger the operational security and integrity of the Town’s sanitary sewer system infrastructure, and threaten public health and safety.” You further contend that “MGL c. 4 section 7 26(n) prohibits the disclosure [of the records] as it is likely to jeopardize public safety.”

In his appeal petition Mr. Clark asserts “RT 57 Sewer Interceptor was never [c]onstructed. Route 57 Phase 3 Highway for the Sewer Inspector was never built. How can the

Stephen Buoniconti, Esq, SPR19/1818 Page 3 September 20, 2019

town of Agawam Solicitor claim there would be a danger when the plan was [n]ever [c]onstucted?”

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, § 10(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 Flatley, 419 Mass, at 511 (custodian has the burden of establishing the applicability of an exemption).

Based on its response, I find the Town has not met its burden in responding to this request. Although a record responsive to this request may “resemble the records listed as examples in the statute” as contemplated in PETA, I find the Town has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the record, or portions thereof, is “likely to jeopardize public safety or cyber security” as required by Exemption (n), PETA, 477 Mass, at 290-91, In particular, the Town must address the issues raised in Mr. Clark’s appeal regarding the lack of construction of the plan at issue.

Therefore, I find the Town has not met its burden to show how Exemption (n) applies to withhold the responsive record in its entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Conclusion

Accordingly, the Town is ordered to provide Mr, Clark a response 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, 2 MUM

Supervisor of Records ce: William Clark