Adam Breuer v. Massachusetts Port Authority (SPR 20191984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2019 SPR19/1984 Shawn Draper Records Access Officer Massachusetts Port Authority Legal Department One Harborside Drive, Suite 200S East Boston, MA 02128-2909 Dear Mr. Draper: 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Breuer requested certain security footage. Prior appeal The requested record was the subject of a prior appeal. See SPRl 9/1748 Determination of the Supervisor of Records (Supervisor) (September 10, 2019). 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 2211d, via email, Mr. 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 2gth 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 SPR19/1748 was opened. In my September 10th determination, I found that Massport did not meet its burden of specificity in claiming Exemption (a) to withhold responsive records in its possession by not claiming the federal or state law that operates through Exemption (a). I ordered 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

Shawn Draper SPR19/1984 Page 2 October 15, 2019 Massport to provide Mr. Breuer with a response to support its exemption claim, and identify the records in its possession that are responsive to Mr. Breuer'.s request. Massport's response to my September 10, 2019 determination In its most recent response to my September 10111 determination, Massport claims, " ... the requested video has been determined to be Sensitive Security Information (SSI) by the Transportation Security Administration (TSA), pursuant to 49 CFR § 1520.5, and its disclosure would be detrimental to transportation security. [Massport] is prohibited from disclosing the information purs-uant to 49 CFR § 1520.9." As a result of Massport's response received on September 11th, Mr. Breuer petitioned the Supervisor and the current appeal was opened. Status of tlte requestor; reason for the request Mr. Breuer should note that his personal interest in any responsive records in the possession of Massport does not afford him any greater right of access to the requested records or information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Breuer's status will play no rol.e in a determination as to whether the record should be disclosed to the public in its entirety or in a redacted format. Tlte 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) (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).

Shawn Draper SPR19/1984 Page 3 October 15, 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 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. 49 U.S.C. 114(r)(l)(C) -Nondisclosure of Sensitive Security Information In the course of reviewing this appeal, Massport informed this office that the federal law pe1iaining to the non-disclosure of Sensitive Security Information (SSI) under the authority of the Depaiiment of Homeland Security and the Transportation Security Administration (TSA) is 49 U.S.C. l 14(r)(l)(C). This statute states in pertinent part: (r) Nondisclosure of Security Activities.- In general.-Notwithstanding section 552 of title 5, the Administrator shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Administrator decides that disclosing the information would ... (C) be detrimental to the security of transportation.

Shawn Draper SPR19/1984 Page 4 October 15, 2019 49 U.S.C. 114(r)(l)(C). 49 CFR 1520.S(b)(S),(9) Protection of S~nsitive Security Information Ip its most recent response, Massport explains that the requested information is Sensitive Security Information (SSI) protected by 49 CFR 1520.5 Massport indicates that 49 CFR 1520.5(b)(5) and (b)(9) restrict from disclosure SSI information pe1iaining to vulnerability assessments and security screening. This Regulation provides in pertinent part: (a) In general. In accordance with 49 U.S.C. 114(r), SSI is information obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA has determined would ... [b]e detrimental to the security of transportation. (b) Information constituting SSL Except as otherwise provided in writing by TSA in the interest of public safety or in furtherance of transportation security, the following information, and records containing such information, constitute SSI: (5) Vulnerability assessments. Any vulnerability assessment directed, created, held, funded, or approved by the DOT, DHS, or that will be provided to DOT or DHS in support of a Federal security program ... (9) Security screening information. The following information regarding security screening under aviation or maritime transp01iation security requirements of Federal law: i. Any procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other authorized person; ii. Information and sources of information used by a passenger or property screening program or system, including an automated screening system; iii. Detailed information about the locations at which paiiicular screening methods or equipment are used, only if determined by TSA to be SSI; 1v. any security screener test and scores of such tests; v. performance or testing data from security equipment or screening systems; vi. any electronic image shown on any screening equipment monitor, including threat images and descriptions of threat images for threat image projection systems. 49 CFR 1520.9-Restrictions on the disclosure of SSI Massport also cites 49 CFR 1520.9 to supp01i withholding the requested video recording as SSI information from public disclosure. This Regulation provides that Massport is prohibited from disclosing SSI to anyone but a covered person. See 49 CFR 1520.7 (definition of covered persons). Part 1520.9(a)(l), (2) states:

Shawn Draper SPR19/1984 Page 5 October 15, 2019 (a) Duty to protect information. A covered person must - (1) take reasonable steps to safeguard SSI in that person's possession or control from unauthorized disclosure. When a person is not in physical possession of SSI, the person must store it a secure container, such as a locked desk or file cabinet or in a locked room. (2) disclose, or otherwise provide access to, SSI only to covered persons who have a need to know, unless otherwise authorized in writing by TSA, the Coast Guard, or the Secretary of DOT. 49 CFR 1520.9(a)(l),(2) Despite Massport's reference to 49 CPR§ 1520.5 and 49 CFR § 1520.9, I find Masspmi has not established how the responsive footage, in its entirety, depicts Sensitive Security Information (SSI) as defined above. 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). Masspmi must clarify this matter. 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