Sylvia Doku v. Massachusetts Port Authority (SPR 20232838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2023 SPR23/2838 Christina Gibson Record Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Sylvia Doku appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2023, Ms. Doku requested “video footage from Boston Logan Airport from Terminal B from Saturday, May 20, 223 between the time of 7:30 am through 8:15 am from the security checkpoint.” Previous Appeals This request was the subject of previous appeals. See SPR23/1242 Determination of the Supervisor of Records (June 26, 2023) and SPR23/1973 Determination of the Supervisor of Records (September 6, 2023). In my September 6th determination, I ordered the Authority to clarify its claims under Exemption (n). The Authority responded on October 16, 2023. Unsatisfied with the Authority’s response, Ms. Doku further 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. 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

Christian Gibson SPR23/2838 Page 2 December 6, 2023 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Authority’s October 16th Response In its October 16, 2023 response, the Authority cites Exemption (n) of the Public Records Law for withholding responsive 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 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id.

Christian Gibson SPR23/2838 Page 3 December 6, 2023 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), the Authority argues the following: [W]ithout confirming or denying the existence of electronic video surveillance, the Authority denies [Ms. Doku’s] request because it seeks video that is exempt from the definition of public records, specifically [Ms. Doku has] requested video of security checkpoints related to security and safety of persons, buildings, structures, facilities, and transportation, the disclosure of which may jeopardize public safety and security (See M.G.L. c. 4, §7, cl. twenty-sixth (n)). The Massachusetts Port Authority is a 24-7-365 transportation agency. Security is our highest priority. In our response, and pursuant to the Public Records Law, the Authority identified the category of record (e.g. electronic video surveillance) and stated that it could not confirm or deny the existence of records of electronic video surveillance of security checkpoints and that such records are exempt from disclosure under exemption (n), as they relate to security and safety of persons, buildings, structures, facilities, and transportation, the disclosure of which may jeopardize public safety and security (See M.G.L. c. 4, §7, cl. twenty-sixth (n); see also G.L c. 66, §10(b)(iv))). Any further specificity regarding the existence or non-existence of this category of record, or details regarding contents of video, if any, and whether such video includes Sensitive Security Information (“SSI”) pursuant to federal law, in particular 49 CFR §1520.5, would disclose details about the capabilities of the Authority’s electronic video surveillance systems; such information is, in and of itself, not subject to disclosure under Public Records Law. Based on the Authority’s response, it is unclear how the responsive video footage 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 Authority 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. Additionally, the Authority did not identify the records in its possession that it intends to withhold from disclosure. G. L. c. 66, § 10(b)(iv). Further it is not clear from the Authority’s response whether the Authority possesses the requested records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Authority must clarify these matters.

Christian Gibson SPR23/2838 Page 4 December 6, 2023 Conclusion Accordingly, the Authority is ordered to provide Ms. Doku 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: Sylvia Doku