Michael LeBlanc v. Massachusetts Port Authority (SPR 20200743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2020 SPR20/0743 Margarita Bardales Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, Massachusetts 02128 Dear Ms. Bardales: I have received the petition of Michael LeBlanc, Esq. of Shapiro & Hender 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. LeBlanc requested “[a]ny and all security camera footage of a motor vehicle accident which occurred on the onramp in Terminal B of Logan International Airport, East Boston, MA, [o]n April 3, 2019 at 8:46 PM, and/or any other documentation related to the accident.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/0048 Determination of the Supervisor of Records (January 23, 2020). I closed SPR20/0048 after this office was notified that Massport intended on providing a supplemental response. On February 6, 2020, Massport provided a response denying access to responsive records pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). Unsatisfied with Massport’s response, Attorney LeBlanc petitioned this office and this appeal, SPR20/0743, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record 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, LeBlanc’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 SPR20/0743 Page 2 May 20, 2020 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 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 February 6th response In its February 6, 2020 response, Massport states that “[w]ithout confirming or denying the existence of video cameras at Logan Airport, your request is denied pursuant to Exemption (n) of the Public Records Law. Under Exemption (n), Massport is entitled to withhold records relating to the security or safety of persons or building, transportation or other infrastructure located within the Commonwealth, the disclosure of which is likely to jeopardize public safety.” Citing PETA, Massport explains that “Exemption (n) encompasses records that a ‘terrorist “would find useful to maximize damage.’ . . . Massport, in its reasonable judgment, has determined that the release of any video, should it exist, would reveal a security protocol at the Airport. Such information could be used by a person to commit a bad act and maximize damage, jeopardizing public safety.” 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

Margarita Bardales SPR20/0743 Page 3 May 20, 2020 public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public 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.” PETA, 477 Mass. at 289-90. 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. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. In its response, Massport states that it cannot confirm or deny the existence of video cameras at Logan Airport. Based on Massport’s response, it is unclear whether it possesses responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii); see also G. L. c. 66, § 10(b)(iv) (a 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 . . .”). As such, I find that Massport must clarify whether it possesses records responsive to Attorney LeBlanc’s request. With respect to Massport’s Exemption (n) claim, I find that it has not met its burden to withhold records under Exemption (n). In particular, Massport has not met its burden to show how the requested records sufficiently “resemble the records listed as examples in the statute” as contemplated in PETA Id. The examples provided in the statute are “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.” G. L. c. 4, § 7(26)(n). As such, it is unclear how the requested records are similar to these examples. Also, although Massport claims that the

Margarita Bardales SPR20/0743 Page 4 May 20, 2020 requested records “. . . could be used by a person to commit a bad act and maximize damage, jeopardizing public safety[,]” it did not detail how the requested records are one a terrorist would find useful to maximize damage. Further, although Massport states that “. . . in its reasonable judgment, [it] has determined that the release of any video, should it exist, would reveal a security protocol at the Airport[,]” I find that Massport has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the video footage, is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. It is additionally uncertain how Massport cannot segregate portions that could reveal a security protocol from the records and provide non- exempt portions. 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, Massport is ordered to provide Attorney LeBlanc with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Michael LeBlanc, Esq.