Colman Herman v. Office of the State Auditor (SPR 20230600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 13, 2023 SPR23/0600 Cole Cagle, Esq. Assistant General Counsel Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Cagle: I have received the petition of Colman Herman appealing the response of the Office of the State Auditor (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2023, Mr. Herman requested “the separate complete report” of the audit of the “Plymouth County Sheriff’s Department dated March 15, 2023.” The Office responded on March 29, 2023, providing a record in redacted form, and citing Exemption (n) of the Public Records Law for the redactions. See G. L. c. 4, § 7(26)(n). Unsatisfied with the Office’s response, Mr. Herman 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. 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

Cole Cagle, Esq. SPR23/0600 Page 2 April 13, 2023 Current Appeal In his appeal petition, Mr. Herman contends that the Office’s “response lacks the specificity required by the public records law.” Additionally, Mr. Herman raises “two other matters” concerning the Office’s use of an on-line portal for public records requests, including the requirement for an “electronic signature” on a “declaration,” and the inability “to maintain an electronic copy of the request.” Particular Form for Request Pursuant to 950 C.M.R. 32.06(1), requests for public records are described below: (a) requests for public records may be made orally in person to a records access officer or custodian or may be written. Telephone requests may be accepted at the discretion of the records access officer. (b) requests for public records shall include a reasonable description of the requested record to the records access officer so that he or she can identify and locate it promptly. (c) written requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access. (d) a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters. In this case, while the Office has made its on-line portal available to submit public records requests, the Office has not required use of the portal in order for Mr. Herman to submit his request. Accordingly, I find that the Office has complied with the requirements of 950 C.M.R. 32.06(1)(a)–(d). The Office’s March 29th Response In its March 29, 2023 response, the Office cites Exemption (n) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(n). Exemption (n) Exemption (n) applies to:

Cole Cagle, Esq. SPR23/0600 Page 3 April 13, 2023 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. Under Exemption (n), in its March 29th response, the Office states the following: [The Office] has applied redactions in reliance on exemption (n) of the Commonwealth’s Public Records Law, Section 7(26) of Chapter 4 of the General Laws, which allows for the withholding of certain records, such as confidential and sensitive information, if their disclosure is likely to jeopardize public safety. In an email to this office and Mr. Herman on April 11, 2023, the Office “reasserts its position that the redacted information is exempt from disclosure, as it pertains to a finding in [the Office’s] audit related to sensitive information, the disclosure of which is likely to jeopardize public safety.”

Cole Cagle, Esq. SPR23/0600 Page 4 April 13, 2023 Based on the Office’s response, it is unclear how the redacted information resembles the records listed under Exemption (n). See PETA, at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the Office has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Herman 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: Colman Herman