Colman Herman v. Office of the State Auditor (SPR 20230745)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2023 SPR23/0745 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.” Previous Appeals This request was the subject of previous appeals. See SPR23/0600 Determination of the Supervisor of Records (April 13, 2023, April 28, 2023) and SPR23/0745 Determination of the Supervisor of Records (April 28, 2023). In my April 28th determination, I ordered the Office to provide this office with an un-redacted copy of the responsive records for in camera inspection. The Office provided the records and I would like to thank the Office for its cooperation. 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

Cole Cagle, Esq. SPR23/0745 Page 2 May 19, 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 Office’s Responses In its April 14, 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). The Office reiterates its claims under Exemption (n) in an email to Mr. Herman and this office on April 19, 2023. 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.

Cole Cagle, Esq. SPR23/0745 Page 3 May 19, 2023 In its April 14th response, under Exemption (n), the Office argues that “the redactions include discussion of ‘records, including … policies [and] procedures … which relate to security measures, emergency preparedness [and] threat or vulnerability assessments.’” The Office further argues that “the audit report in question is of the Plymouth County Sheriff’s Department, a law enforcement agency, and there is a high likelihood that the redacted record ‘is one a terrorist would find useful to maximize damage.’” Additionally, the Office argues that “threat assessments are one of the specified types of records that were envisioned as protected by exemption (n).” In its April 19, 2023 email to Mr. Herman and this office, the Office further argues the following: First, the OSA affirms that the redacted information is among the types of information not only contemplated by the statute but specifically listed (threat or vulnerability assessments) in the statute. . . . Moreover, it is wholly reasonable to infer that that mere disclosure of this highly sensitive and confidential information that identifies “vulnerabilities and threats” is “likely to jeopardize public safety or cyber security” as required by Exemption (n). In Camera Review Following in camera inspection, and in conjunction with the Office’s response, I find that the Office has met its burden to redact the responsive records pursuant to Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman