Karina Wilkinson v. Executive Office of Public Safety and Security (SPR 20200332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 6, 2020 SPR 20/0332 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." Previous Determination This request was the subject of a previous determination. See SPR 19/2371 Determination of the Supervisor of Records (January 21, 2020). In my January 2!81 determination I found, upon in camera inspection of the records, that EOPSS had not met its burden to redact the portions of the contract, in their entirety, under Exemption (n) of the Public Records Law. I therefore ordered EOPSS to provide a response to Ms. Wilkinson consistent with that determination, the Public Records Law, and its regulations. EOPSS provided a response on February 3, 2020, providing a more minimally-redacted version of the responsive records. Unsatisfied with this response, Ms. Wilkinson petitioned this office and this appeal, SPR 20/0332, was opened as a result. The Ptiblic 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). One Ashbmion 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. SPR20/0332 Page2 March 6, 2020 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); 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. Current Appeal In her February 20, 2020 appeal petition, Ms. Wilkinson appeals redactions made by EOPSS to the names of the locations where specific security measures are in place. EOPSS indicates in its response that it has made these redactions pursuant to Exemption (n) of the Public Records Law. 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, transpmiation, 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 ce1iain 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 fmiher 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.

Arielle Mullaney, Esq. SPR20/0332 Page 3 March 6, 2020 In support of its Exemption (n) 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 individual with detail about the location of strategic security measures and emergency preparedness in Department of Correction facilities .... " EOPSS concludes that in its "reasonable judgment," "disclosure of the redacted and withheld information would be likely to jeopardize public safety." Based on EOPSS's responses and my prior in camera inspection of the record, I find EOPSS has met its burden to redact the names of the locations of security measures pursuant to Exemption (n). See G. L. c. 4, §7(26)(11). Conclusion Accordingly, where I find that EOPSS may permissibly redact this information, I will consider this administrative appeal closed. If Ms. Wilkinson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Karina Wilkinson