Gregory Buteau v. Leicester, Town of - Public Schools (SPR 20210290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2021 SPR21/0290 David A. Genereux Town Administrator Town of Leicester 3 Washburn Square Leicester, MA 01524 Dear Mr. Genereux: I have received the petition of Gregory Buteau appealing the response of the Town of Leicester (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2021, Mr. Buteau requested “. . . to review the plans of the vacant former Memorial School in the Town of Leicester.” The Town provided responses on January 14, 2021, and January 25, 2021, indicating the records are being withheld pursuant to Exemption (n). G. L. c. 4, § 7(26)(n). Unsatisfied with the Town’s responses, Mr. Buteau petitioned this office and SPR21/0290 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

David A. Genereux SPR21/0290 Page 2 February 17, 2021 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. Current appeal In its January 25th response, the Town indicates, “[t]he School District received your voicemail requesting to see the design plans of school buildings. I am writing to let you know that your request is denied because such documents are exempt from disclosure under exemption (n) of the Massachusetts Public Records Law.” In his appeal, Mr. Buteau contends “[g]iven that Memorial School is vacant, I do not see that the second prong of Exemption (n) has been satisfied.” 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.’” 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.

David A. Genereux SPR21/0290 Page 3 February 17, 2021 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, the Town explains, “[t]he plans you are requesting to see fall under this exemption and that is the reason for the denial.” It is my understanding the Memorial School remains in possession of the Town, and may be used for a public purpose in the future. In his appeal, Mr. Buteau provides a letter from a 2014 study, which included the Memorial School, as reference for the plans he seeks. The letter indicates, “[t]here are fairly complete Architectural and Structural drawings for the building …” Based on the Town’s response, I find it has not met its burden to withhold the responsive records under Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records are “likely to jeopardize public safety.” See PETA at 289-90. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Buteau with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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: Gregory Buteau