Meghan Keegan v. Sandwich, Town of (SPR 20232643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2023 SPR23/2643 Taylor D. White Town Clerk Town of Sandwich 100 Route 6A Sandwich, MA 02563 Dear Mr. White: I have received the petition of Meghan Keegan, appealing the response of the Town of Sandwich (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2023, Ms. Keegan requested the following records: [1.] All purchase orders or documentation pertaining to cost or potential cost of the NIGHTLOCK barricade devices. [2.] All emails to and from NIGHTLOCK company or associated or affiliated representatives. [3.] All emails to and from anyone on the safety advisory committee pertaining to NIGHTLOCK devices. [4.] All emails to and from the facilities director pertaining to the NIGHTLOCK devices including but not limited to the police chief, fire chief, school committee, school committee chair, and the superintendent. The Town provided a response on November 2, 2023, citing Exemption (n) of the Public Records Law for denying the request. See G. L. c. 4, § 7(26)(n). Unsatisfied with the Town’s response, Ms. Keegan petitioned this office and this appeal, SPR23/2643, 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 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

Taylor D. White SPR23/2643 Page 2 November 14, 2023 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. Attorney 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 Town’s November 2nd response In its November 2, 2023 response, the Town cited Exemption (n) of the Public Records Law to withhold the requested 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 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

Taylor D. White SPR23/2643 Page 3 November 14, 2023 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 response, the Town argues that “providing the requested information would jeopardize the public safety of the students and staff of the Sandwich Public Schools and could lead to future legal ramifications for the Town of Sandwich.” Based on the Town’s response, I find it has not met its burden to withhold the responsive records under Exemption (n). Specifically, it is unclear how the withheld records resemble 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 Town has not sufficiently explained how disclosure of the records are “likely to jeopardize public safety.” See PETA at 289-90. The Town must clarify these matters. It is also unclear if the Town identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Ms. Keegan with a response to her 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: Meghan Keegan