Chika Odunukwe v. Massachusetts Port Authority (SPR 20232910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2023 SPR23/2910 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 Chika Odunukwe 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 June 8, 2023, Ms. Odunukwe requested, “footage of an interaction that took place on Saturday, May 27, 2023, between approximately 1:10 PM and 1:20 PM. The incident occurred with a G2/Massport employee prior to entering the security area, specifically the unsecured TSA area prior to entering the TSA line of Terminal C5-C36.” On September 19, 2023, the Authority responded. Unsatisfied with the Authority’s response, Ms. Odunukwe petitioned this office and this appeal, SPR23/2910, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Christina Gibson SPR23/2910 Page 2 December 15, 2023 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 September 19th Response In its September 19, 2023 response, the Authority cited Exemption (n) of the Public Records Law to withhold responsive records. Current appeal In her appeal, Ms. Odunukwe states, “I respectfully assert that the incident in question occurred before the security checkpoint, and therefore, the requested video should not be subject to the aforementioned exemption… Given the circumstances of the incident, I believe the requested video does not fall within the scope of information protected [Exemption (n)]. The exemption is designed to safeguard information related to the security and safety of persons, buildings, structures, facilities, and transportation. However, in this instance, the incident occurred prior to the security checkpoint, and the requested video is unlikely to compromise public safety and security.” 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.

Christina Gibson SPR23/2910 Page 3 December 15, 2023 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. Under Exemption (n), the Authority states, “[w]ithout confirming or denying the existence of electronic video surveillance, [the Authority] denies [Ms. Odunukwe’s] request because it seeks video that is exempt from the definition of public records, specifically you have 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[.]” Based on the Authority’s response, I find that the Authority has not met its burden to withhold the requested record under Exemption (n). Specifically, it is unclear how the requested information resembles the records listed in the statute. Also, the Authority has not demonstrated that the record is one a terrorist would find useful to maximize damage. Additionally, the Authority did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Authority has not sufficiently explained how disclosure of the records are likely to jeopardize public safety. See PETA at 289-90. Further, based on the Authority’s response, it is unclear whether the Authority possesses the record responsive to the request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Authority must clarify these matters. Conclusion Accordingly, the Authority is ordered to provide Ms. Odunukwe 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 the response to this office at pre@sec.state.ma.us. Ms. Odunukwe may appeal the substantive nature of the Authority’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chika Odunukwe