Anette Seltzer Lewis v. Wayland, Town of - Office of the Board of Selectmen (SPR 20220574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2022 SPR22/0574 Stephen Crane Acting Town Administrator Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Mr. Crane: I have received the petition of Anette Lewis appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Originally on December 29, 2021, and following-up with the Town multiple times through February 15, 2022, Ms. Lewis requested the following: [a.] The scope of work and all other documents referred to (Attach Additional and considered by the Board of Selectmen under Documentation if necessary) Consent Calendar #4 “the Route 20 Corridor Project” during its 12/13/21 meeting. [b.] And, an accounting of all monies expended to date, for whatever reason, from the funding source that is also being used to pay for this current effort. Previous Appeal This request was the subject of a previous appeal. See SPR22/0423 Supervisor of Records Determination (February 28, 2022). In my February 28th determination, I ordered the Town to identify the records being withheld and to specify any exemptions for withholding them. Subsequently, the Town responded on March 4, 2022. Unsatisfied with the Town’s response, Ms. Lewis appealed, and this case 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 agency or 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

Stephen Crane SPR22/0574 Page 2 March 23, 2022 municipality 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. Att’y 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. The Town’s march 4th Response In its March 4, 2022 response, the Town cites Exemption (n) for withholding responsive records. 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.

Stephen Crane SPR22/0574 Page 3 March 23, 2022 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. Under Exemption (n), the Town argues the following: The Town is making the requested records available to the requestor for inspection at Town Hall, but has specific concerns with providing the records electronically given the financial information contained therein, and the potential for cyber-security and/or data fraud involving the Town, as the records involve financial and accounting information. Specifically, the Town has concerns regarding the electronic dissemination of such financial records, and, as such, is making the accounting records available for inspection at Town Hall. . . . The Town maintains that such resolution, by making the records available to the requestor for in person review, is necessary to limit the potential for data fraud and cybersecurity concerns involving the financial information contained in such records if electronically disseminated. Based on the Town’s response, I find the Town has not met its burden to withhold the records responsive to Item (b) of the request in their entirety. Specifically, the Town has failed to demonstrate how information such as dates, amounts, and recipients of expenditures can be withheld. The Town must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 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). Additionally, the Town has not met its burden to show how records responsive to Item (a) of the request may be withheld. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemptions which apply. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Preferred Format The Town is advised that a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d).

Stephen Crane SPR22/0574 Page 4 March 23, 2022 Conclusion Accordingly, the Town is ordered to provide Ms. Lewis with a response to her request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, I- - - . ~ .·· ' ·' •·· Rebecca S. Murray Supervisor of Records cc: Anette Lewis