Sarah Means v. Shirley, Town of (SPR 20221609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2022 SPR22/1609 William Oelfke Town Clerk Town of Shirley 7 Keady Way Shirley, MA 01464 Dear Mr. Oelfke: I have received the petition of Sarah Means appealing the response of the Town of Shirley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 29, 2022, Ms. Means requested: [1] Minutes regarding formal complaint placed about livestock at [an identified address] to Board of Health on 6/25/2022[;] [2] Phone records showing call regarding formal complaint placed about livestock at [an identified address] to Board of Health on 6/25/2022[;] [3] list of property addresses for all barn permits in town of Shirley[.] The Town provided a response on July 6, 2022. Unsatisfied with the Town’s response, Ms. Means petitioned this office and this appeal, SPR22/1609, 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 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 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

William Oelfke SPR22/1609 Page 2 July 22, 2022 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. The Town’s July 6th Response In its July 6, 2022 response, the Town provided certain responsive records and indicated that it was withholding the responsive records requested in Paragraph 3. Citing Exemption (n), the Town asserted that, “[y]our request for the list of property addresses for all barn permits in town of Shirley cannot be provided to you since that information is exempt from the Public Records Request process, per the MA Dept of Agricultural Resources, Division of Animal Health.” 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 “[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

William Oelfke SPR22/1609 Page 3 July 22, 2022 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). The Town’s response did not contain the specificity required in a denial of access to public records. The Town merely cites Exemption (n) without any explanation of the applicability of the exemption to the responsive records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested record. Consequently, I find the Town did not meet its burden of demonstrating how the requested record is exempt from disclosure. If the Town maintains the record is exempt from public disclosure, it must explain with specificity how the cited exemption applies to withhold the responsive record. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Ms. Means 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. Ms. Means may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sarah Means