Arthur G. Grenier v. Bristol County District Attorney's Office (SPR 20202493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 29, 2020 SPR20/2493 Mary Lee, Esq. Assistant District Attorney Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Artie Grenier appealing the response of the Bristol County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Grenier requested “Polices, Procedures, Written Directives, PowerPoint Slides, training materials and/or other forms of written, audio and/or video training provided to employees, vendors and/or others who are responsible for entering case management information into Damion Case Management System.” The Office responded on November 10, 2020, withholding responsive records pursuant to Exemptions (d) and (n) of the Public Records Law. Unsatisfied with the Office’s response, Mr. Grenier petitioned this office and this appeal, SPR20/2493, 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 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. 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

Mary Lee, Esq. SPR20/2493 Page 2 December 29, 2020 The Office’s response In its November 10, 2020 response the Office indicates that it is withholding responsive records pursuant to Exemptions (d) and (n) of the Public Records Law. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); - se - e -al-so- -E-nv-t-l. -P-ro-t-ec-ti-o-n -A-g-e-nc-y- v-. -M-i-n-k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its response, the Office states that “policies, procedures, written directives, power point slides, training materials and/or other forms of written, audio and/or video training provided to employees or others are exempt from public disclosure under the opinion work product privilege.” Despite the Office’s statement, it is unclear how the training materials sought by Mr. Grenier “relat[e] to policy positions being developed” by the Office. See G. L. c. 4, § 7(26)(d).

Mary Lee, Esq. SPR20/2493 Page 3 December 29, 2020 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. 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. In its response, the Office states that “If any documents exist that explain how the DAMION case management system functions, those records would not be public records. The DAMION system contains private information including criminal offender record information and the names of victims and juvenile offenders.” The Office further argues that “Any records that explain how DAMION works or noting its specifications would likely result in jeopardizing the case management system in terms of illegal hacking. The release of any such records will undermine the cybersecurity of the entire system.” Based on the Office’s response, I find it has not met its burden in responding to this

Mary Lee, Esq. SPR20/2493 Page 4 December 29, 2020 request. In particular, the Office has not identified the responsive records it possesses. See G. L. c. 66, § 10(b) (a written response shall “identify any records, categories of records or portions of records that the agency or municipality intends to withhold”). Further, I find the Office has not provided “sufficient factual heft” to conclude that disclosure of the requested records is “likely to jeopardize public safety or cyber security” as required by Exemption (n). See PETA, 477 Mass. at 290. Specifically, the Office has not provided information to explain how disclosure of records would permit “illegal hacking” or other threats to cyber security. Conclusion Accordingly, the Office is ordered to provide a response to Mr. Grenier, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Artie Grenier