Karina Wilkinson v. Executive Office of Public Safety and Security (SPR 20192371)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2019 SPR19/2371 Arielle Mullaney, Esq. Assistant General Counsel Executive Office of Public Safety and Security One Ashburton Place, Rm. 2133 Boston, MA 02108 Dear Attorney Mullaney: I have received the petition of Karina Wilkinson appealing the response of the Executive Office of Public Safety and Security (EOPSS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Wilkinson requested any amendments to a contract between the EOPSS and Securus Technologies "that switched the commission from 7 6% of all revenues to a flat rate, which started Jan. 1, 2019." EOPSS responded to Ms. Wilkinson on November 18, 2019, providing a responsive record in redacted form. Unsatisfied with this response Ms. Wilkinson petitioned this office and this appeal, SPR19/2371, 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, § 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, § IO(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 Ashbmton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Arielle Mullaney, Esq. SPR19/2371 Page 2 December 10, 2019 Current Appeal In its November 18th response, EOPSS indicates that "minor redactions were made pursuant to G.L. c. 4, § 7 clause 26(b) and (n)." Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom ofinformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In support of its Exemption (b) claim, EOPSS states that "the information requested contains internal matters of a substantial nature, the disclosure of which would risk the circumvention of statute and/or agency regulation." Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and

Arielle Mullaney, Esq. SPR19/2371 Page 3 December 10, 2019 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, transpo1iation, 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)(11). 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. In support of its Exemption (ri) claim, EOPSS states that "the disclosure of the redacted information is such that a terrorist would find useful to maximize damage and, therefore, their release would likely jeopardize public safety." EOPSS further explains that "[a]n individual who sought to maximize damage to persons in the Commonwealth would find this information useful insofar as it would provide that individua.l with detail about the location of strategic security measures and emergency preparedness in Department of Correction facilities .... " 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 pmiions 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).

Arielle Mullaney, Esq. SPR19/2371 Page 4 December 10, 2019 In camera inspection · In order to facilitate a determination as to the applicability of the Exemptions (b) and (f) claims made by EOPSS to redact portions of the contract, EOPSS must provide this office with an un-redacted copy of the responsive record for an in camera review without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. 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. Conclusion Accordingly, EOPSS is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, ~ Rebecca S. Murr~ Supervisor of Records cc: Karina Wilkinson