Heather MacDonald v. Hull, Town of - Fire Department (SPR 20232804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2023 SPR23/2804 James B. Lampke, Esq. Town Counsel Town of Hull 115 North Street, Suite 3 Hull, MA 02043 Dear Attorney Lampke: I have received the petition of Heather MacDonald appealing the response of the Town of Hull (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2023, Ms. MacDonald requested, “... the on-duty police and fire personnel on 10/17/23 and 10/18/23 ... in the hours between 3 pm-5 pm on 10/18 but would like all 48 hours.” On October 26, 2023 Ms. MacDonald modified her request and canceled the request for the police shifts and requested “[an identified Captain’s] shift information from Chief. . .” The Town responded on November 8, 2023. Unsatisfied with the response, Ms. MacDonald petitioned this office and this appeal, SPR23/2804, 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. 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 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

James B. Lampke, Esq. SPR23/2804 Page 2 December 5, 2023 or redacted portion of the responsive record. The Town’s November 8th Response In its November 8, 2023 response, the Town produced requested records with the “names of the Fire Department public safety employees who worked during the time periods ... requested.” The Town cited Exemptions (a) and (n) of the Public Records Law to withhold certain records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Town states: [t]hese documents would be, by necessary implication, exempted from disclosure in conjunction with G.L. c.30A, sec. 21 (1), permitting Executive Sessions to discuss “4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;”. This needs to be read in conjunction with the G.L. c. 4, sec. 7, clause 26, the Public records Law which provides and exemption as a public record “(a) specifically or by necessary implication exempted from disclosure by statute;” Information pertaining generally to deployment of security personnel or devices or strategies is permitted to be a basis for a confidential

James B. Lampke, Esq. SPR23/2804 Page 3 December 5, 2023 Executive Session. By implication, since it is a proper subject to Executive Session, documents related to such a proper subject to Executive Session would be exempted from disclosure. Otherwise, it would defeat the purpose of the Executive Session and confidential nature of the documents. Exemption (n) Exemption (n) permits the withholding of: 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). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong 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.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90.

James B. Lampke, Esq. SPR23/2804 Page 4 December 5, 2023 In its response, the Department asserted, “[s]hift details would be exempt from disclosure ... [because] ... such information is likely to impair and jeopardize public safety.” Open Meeting Law The nature of the Town’s response raises issues that invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office. Consequently, I decline to opine on this matter at this time. See G. L. c. 30A, § 23. It is recommended that the parties contact the Attorney General’s Office if they seek a determination on this issue. Sincerely, Manza Arthur Supervisor of Records cc: Heather MacDonald