Stanley Mazurczyk v. Chelmsford, Town of - Police Department (SPR 20231916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2023 SPR23/1916 Alexandra Hayden Records Access Officer Chelmsford Police Department 3 Olde North Road Chelmsford, MA 01824 Dear Ms. Hayden: I have received the petition of Stanley Mazurczyk appealing the response of the Chelmsford Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 11, 2022, Mr. Mazurczyk stated, “[a]ttached is July 2021 Chelmsford Police Department (Department) Verizon invoice. Page 5 reveals [a named person] operates Town of Chelmsford (Town) paid for redacted cell phone. It’s unclear if [the named person] is Department employee exploiting Town funds. I request Town provide record of [the named person’s] employment status at that and current time. Reason for redacting cell phone number assigned to her.” Prior appeals This request was the subject of previous appeals. See SPR22/2707 Determination of the Supervisor of Records (December 8, 2022); SPR23/0202 Determination of the Supervisor of Records (February 14, 2023); and SPR23/0462 Determination of the Supervisor of Records (March 22, 2023). In my March 22nd determination, I was unable to issue a determination and stated that Mr. Mazurczyk may wish to clarify his specific objections to the Department’s response dated March 1, 2023. On April 25, 2023, Mr. Mazurczyk clarified his specific objections, petitioned this office and the appeal, SPR23/0797, was opened as a result. I closed SPR23/0797 where I learned that the Department intended to provide a further response to Mr. Mazurczyk. See SPR23/0797 Determination of the Supervisor of Records (May 9, 2023). On May 23, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/1916, was opened as a result. 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

Alexandra Hayden SPR23/1916 Page 2 September 1, 2023 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. The Department’s May 23rd Response In its May 23, 2023 response, the Department asserts that it is redacting the price plan code pursuant to Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n). The Department also states that it is redacting the phone plan account number pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). Current Appeal In his current appeal, Mr. Mazurczyk asserts: I questioned use of exemption(s) to justify redaction of “price plan code”, “Current Corporate Account Number”, and “Add to Existing Account Number” information Department provided in attached March 1, 2023 supplemental response. [1] In March 1, 2023 response, the Department cited exemption (c) of the Public Records Law to redact that information. [2] In May 23, 2023 response, the Department cited exemption (b) and (n) of the Public Records Law to redact that information. [3] The Town has previously provided phone account numbers without redactions. It’s unclear why this request is treated differently. [4] It’s unclear if any of the cited exemptions are justified/applicable. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit,

Alexandra Hayden SPR23/1916 Page 3 September 1, 2023 provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its response, the Department states: Also included in our previous response was a redaction for the phone plan account number. Redactions were made and applied where visible and this redaction was based on [Exemption (b)]…. This exemption allows for the withholding of certain records that are not for public use and are for internal use only. This account number is for use by Verizon and [the Department] for the phone account. This exemption relieves the agencies burden of assembling and maintaining this information for public inspection as they do not have a legitimate interest, nor would this information serve a purpose for the public. It’s release would hinder the department’s personnel from current and future use of Verizon phone services, as the account could be compromised. I find the Department has met its burden to show how disclosure of the phone plan account number would depict “internal personnel rules and practices” and the “proper performance of necessary governmental functions” requires such withholding. Therefore, I find the Department has met its burden to withhold the phone plan account number under Exemption (b).

Alexandra Hayden SPR23/1916 Page 4 September 1, 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.’” 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 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 “these 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.” Id. at 290. In its response, the Department states: In our previous response copies of “Transfer of Billing Responsibilities Faxback/ E-mail Form” were provided, redactions were made and applied where visible. The redaction of the price plan code was based on [Exemption (n)]…. This exemption allows for the withholding of certain records which, if released, will likely jeopardize public safety or cyber security. The price plan code is not meant to be disseminated to the public as it is a specific code applied to a phone plan by Verizon to set that plan at a specific price. If this was disclosed to the

Alexandra Hayden SPR23/1916 Page 5 September 1, 2023 public, it would illegally or maliciously be used as an advantage to obtain a set phone plan price and would directly benefit the person applying the code to their phone plan. Based on the Department’s response, I find it has not met its burden to redact the price plan code pursuant to Exemption (n). Although the Department explains that “[i]f this was disclosed to the public, it would illegally or maliciously be used as an advantage to obtain a set phone plan price and would directly benefit the person applying the code to their phone plan[,]”it is unclear here how the particular information contained in the responsive record resembles the records listed in the statute. See id. 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. Conclusion Accordingly, the Department is ordered to provide Mr. Mazurczyk 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. Mr. Mazurczyk may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk