Robert DeFusco v. Methuen, City of - Office of the City Solicitor (SPR 20222601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 30, 2022 SPR22/2601 Kenneth J. Rossetti, Esq. City Solicitor City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Rossetti: I have received the petition of Robert DeFusco appealing the response of the City of Methuen (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 4, 2022, following a series of questions about two specific contracts, Mr. DeFusco requested “that the City and Council release the procurement details related to this project.” The City responded on November 10, 2022, providing responsive records in redacted form. Unsatisfied with the City’s response, Mr. DeFusco 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 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. 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 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

Kenneth J. Rossetti, Esq. SPR22/2601 Page 2 November 30, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, and in subsequent correspondence with this office, Mr. DeFusco contends that the City “is illegally withholding public procurement information” and that the City is “relying on an overly broad interpretation” of Exemption (n). No Duty to Answer Questions In correspondence included with his appeal petition, Mr. DeFusco also refers back to the “five basic questions on this procurement” included with his original request for records. Please be advised that under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Open Meeting Law Mr. DeFusco also includes with his appeal petition a copy of a signed Open Meeting Law Complaint Form concerning the purpose for a City Council Executive Session under G. L. c. 30A, § 21(a)(4). Based on an email from the Attorney General’s Office (AGO) to Mr. DeFusco and this office on November 15, 2022, I understand he has contacted the AGO concerning the Open Meeting Law issues. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. The City’s November 14th and November 22nd Responses In its November 14, and November 22, 2022 responses, the City cites Exemption (n) of the Public Records Law for redacting four responsive records. See G. L. c. 4, § 7(26)(n). 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

Kenneth J. Rossetti, Esq. SPR22/2601 Page 3 November 30, 2022 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. 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 November 10th response, the City argues the following under Exemption (n): The information redacted, if revealed publicly, would jeopardize public safety by alerting the world to contracted security measures pertaining to the City’s schools. Such revelation would furnish potential attackers with direction toward countering the security adopted in the school system and thereby diminish security afforded to school children, teachers, and staff. Concerning the first prong of Exemption (n), in its November 22nd response, the City argues that “the two contracts at issue pertain to the deployment of security measures in the Methuen Public School District (“District”), and, therefore, these documents fall within the express nondisclosure provision of the public safety exemption.” The City goes on to argue that “the two contracts at issue pertain to security measures to be undertaken in the District.” Concerning the second prong of Exemption (n), the City argues the following: The City exercised reasonable judgment by precluding the public release of coming security measures in the district, which serves nearly 7,000 students and where a violent attack occurred earlier this year. ... Indeed, publicly releasing records related to security measures to be effectuated in a public school district endangers public safety by furnishing evil doers with a road map on how to attack

Kenneth J. Rossetti, Esq. SPR22/2601 Page 4 November 30, 2022 a school; such information directs attackers to points that may not be secured and/or countermeasures against the implemented security measures. The Public Safety Exemption helps municipalities meet these security challenges by shielding security measures from public disclosure. In a letter to this office on November 28, 2022, Mr. DeFusco notes that specific information about the bid solicitation for the two contracts at issue in this appeal is publicly available online. Where the information relating to these bid solicitations is already publicly available, it is unclear how the disclosure of the redacted information from the responsive records is likely to jeopardize public safety. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. DeFusco with a response to his 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, Manza Arthur Supervisor of Records cc: Robert DeFusco