James Sullivan v. Bellingham, Town of - Town Clerk (SPR 20202104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2020 SPR20/2104 Denis C. Fraine Town Administrator Town of Bellingham 10 Mechanic Street Bellingham, MA 02019 Dear Mr. Fraine: I have received the petition of James Sullivan, of WFKI AM FM Radio Group, appealing the response of the Town of Bellingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan requested: “a latest revised copy of the [T]own’s Reverse 911 dialer list modified no later than the date you sign[ed] for this certified mail request that you have on file with Code Red. Requested is a printed paper version of data and an electronic compatible data form that Code Red can export from their PBX dialer system to an Asterisk system. (csv tab delimited, xlsx, comma based).” Prior appeal The responsive records were the subject of a prior appeal. See SPR20/1980 Determination of the Supervisor of Records (October 29, 2020). The Town denied the September 23, 2020 request, providing Mr. Sullivan with a copy of the private policy information from OnSolve, the 3rd party that administers the system on October 2, 2020. As a result, Mr. Sullivan petitioned the Supervisor of Records (Supervisor), and the prior appeal was opened. On October 28, 2020, the Town’s Legal Counsel, Janelle M. Austin, provided Mr. Sullivan with a response to SPR20/1980. Unsatisfied with the October 28th response, Mr. Sullivan petitioned the Supervisor and this appeal, SPR20/2104, was opened. Current appeal In its October 28th response, the Town asserts that Exemption (n) of the Public Records Law will allow the Town to withhold the responsive Code Red Reverse 911 data. In his October 29th email, Mr. Sullivan disagrees with the reasons for the exemption claim. He contends, “…a good portion of the information and electronic data sought is made 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

Denis C. Fraine SPR20/2104 Page 2 November 10, 2020 public fee and available thru Patriot Properties – Bellingham online as part of the [T]own’s GIS for [r]eal [e]state soliciting.” Mr. Sullivan asserts, “[t]he information sought is electronic form mapping taxpayers of Bellingham and their volunteered phone number and zip code and address.” Mr. Sullivan also states, “...the only information missing [from Patriot Properties – Online GIS] that is sought are the contact phone numbers associated with the [T]own’s Reverse 911 dialer.” 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) (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). 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 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. 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.

Denis C. Fraine SPR20/2104 Page 3 November 10, 2020 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 "[because 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." PETA also provides that "[these 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." Id. at 290. Exemption (n) is not limited to building plans, but also to blueprints, plans, policies, procedures, schematic drawings, security and safety measures. Therefore, the Town contends, “[a]fter careful consideration by Town officials regarding this request for Code Red emergency alert data information, please be advised that it is the Town’s position that this public safety information, if disclosed, could unduly impact the Town’s emergency preparation systems, including at this time during COVID-19 pandemic, and/or other public safety and emergency matters, if made available to the public.” During a telephone conversation, Attorney Austin informed a Senior Attorney in the Public Records Division that a further response on the Town’s position regarding the non- disclosure of the Code Red data will be forthcoming, and the Town may assert further exemption claims as necessary. Conclusion Accordingly, the Town is to provide Mr. Sullivan with the further response to the request, 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: James Sullivan, WFKI AM FM Radio Group Janelle M. Austin, Esq., KP Law, P.C.