Matthew Rocheleau v. MASSPORT (SPR 20192339)

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

Rebecca S, Murray Supervisor of Records

December 5, 2019 SPR19/2339

Margarita Bardales

Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128

Dear Ms. Bardales:

_ [have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Massachusetts Port Authority (Massport) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested “[a]ny/all Massport, Massport Police, and State Police/Troop F equipment inventories, purchase orders/invoices, contracts, service agreements, grant award letter, maintenance/repair, and subscriptions/memberships . . .” for various categories of records.

Previous appeals

The requested records were the subject of previous appeals. See SPR19/1266 Determination of the Supervisor of Records (June 25, 2019); SPR19/1408 Determination of the Supervisor of Records (July 30, 2019) and SPR19/1699 Determination of the Supervisor of - Records (September 4, 2019), In my September 4" determination, I found that Massport had not met its burden to withhold certain records under Exemption (n) of the Public Records Law. I also directed Massport to identify the records it is withholding from disclosure. Accordingly, I

_ ordered Massport to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, Massport provided a response on November 19, 2019. Unsatisfied with Massport’s response, Mr. Rocheleau petitioned this office and this appeal, SPR19/2339, 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.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

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 SPR19/2339 Page 2 December 5, 2019

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.

If there are any fees associated with a response a written, good faith estimate must be provided, G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Massport’s November 19" response

In its November 19, 2019 response, Massport states that Exemption (n) “exempts from disclosure ‘policies [and] procedures . .. which relate to security measures . . . or any other records relating to the security or safety of persons or buildings . . . the disclosure of which, in the reasonable judgment of the record custodian, . . . is likely to jeopardize public safety.’ The Executive Office of Public Safety described exemption (n) as encompassing records of ‘the type that a terrorist would find useful to maximize damage’ (See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289 (2017).)” As a result, Massport contends that “. .. confirmation of the existence of documentation of any particular type of [surveillance] equipment, or denial thereof, would reveal security measures being employed or not being employed by Massport properties.” Massport asserts that “[s]uch information taken together, is clearly exempt from disclosure under exemption (n). Massport, in its reasonable judgment, believes that such information could be used by a person to maximize damage, and therefore such information was withheld. .. .”

With respect to State Police Troop F equipment, Massport states that “[t]o the extent [it] provides funding for law enforcement equipment used by Troop F, such funding would be at the request of the Massachusetts State Police for equipment purchased in accordance with the standards and practices of the State Police. Moreover, any such equipment is used for the security of Massport properties and confirmation of the existence of documentation of any particular type of equipment, or the denial thereof, would reveal security measures being employed or not being at such properties.”

Exemption (n) Exemption (n) permits the withholding of: 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,

Margarita Bardales — SPR19/2339 Page 3 December 5, 2019

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. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety.

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.

Although Massport claims that the records are exempt under Exemption (n), it is unclear why the records must be withheld in their 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). Consequently, Massport must explain whether | segregable portions can be provided.

In camera inspection

In the alternative, in order to facilitate my review, Massport may provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32,08(4); see also Bougas, 371 Mass. at 66 (explaining that “[o]n doubtful questions an in camera inspection may be appropriate”). 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.

Margarita Bardales SPR19/2339 Page 4 . . December 5, 2019

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.

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.

Massport may provide this office with an explanation of its position regarding the applicability of Exemption (n) to withhold the records in their entirety, Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Order

Accordingly, Massport is ordered to provide Mr. Rocheleau with a response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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 the alternative, Massport may provide this office with un-redacted copies of the responsive records for an in camera inspection without delay.

Sincerely,

Lellecca

Rebecca S. Murray Supervisor of Records

cc: Matthew Rocheleau