Robert DeFusco v. Methuen, City of - Office of the City Solicitor (SPR 20222895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2023 SPR22/2895 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2601 Determination of the Supervisor of Records (November 30, 2022). In my November 30th determination, I ordered the City to clarify its claim under Exemption (n) for redacting responsive records. Subsequently, the City responded on December 14, 2022. 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 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. SPR22/2895 Page 2 January 4, 2023 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 City’s December 14th and December 28th Responses In its December 14, 2022 response, and in a letter to this office and Mr. DeFusco on December 28, 2022, the School reiterates its previous arguments and offers additional arguments to support its redaction of the responsive records pursuant to Exemption (n) of the Public Records Law. 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 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.

Kenneth J. Rossetti, Esq. SPR22/2895 Page 3 January 4, 2023 In addition to its previous responses, the City summarizes its additional arguments as follows in its December 14th response and in a December 28, 2022 letter to this office and Mr. DeFusco: Since the contract documents are significantly more sensitive than the bidding documents, the public safety exemption should continue to protect the contracted- for school security measures from public disclosure. . . . Bidding differs from contracting because bidding can be cancelled, whereas contracting signifies immediacy and confirms imminent deployment of security measures. . . . The City’s required compliance with bidding laws does not negate, jettison, or obviate the public safety exemption. . . . The public safety exemption warrants continued application because the readership for a response or decision on a request for records is far broader than the expected readership for bidding documentation. . . . The school district suffered an attack on school grounds, which underscores the reasonableness of the judgment to redact information regarding contracted-for school security measures. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the City to redact responsive records, the City must provide this office with an un- redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a

Kenneth J. Rossetti, Esq. SPR22/2895 Page 4 January 4, 2023 promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Robert DeFusco