Boston Accountability Network v. Boston, City of - Public Records (SPR 20233011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2023 SPR23/3011 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of the Boston Accountability Network, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 5, 2023, the requestor requested, “... copies of public records that show every time that [a named individual] has used her City of Boston parking garage pass to enter the facility… I am looking for a detailed record of every instance that [a named individual] used her pass card to enter/exit the facility, including the area known as ‘Executive Parking.’ I am also requesting a similar list of all the dates & times that [a named individual] has used her pass card to enter/exit City Hall and/or any offices and areas within the building.” The City responded on July 20, 2023. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR23/3011, was opened as a result. Prior appeal This request was the subject of a previous appeal. See SPR22/2165 Determination of the Supervisor of Records (September 21, 2022). In my September 21st determination, it was my understanding that the City intended to provide a further response to the requestor. On December 8, 2023, the City responded. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR23/3011, 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 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

Shawn A. Williams, Esq. SPR23/3011 Page 2 December 27, 2023 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). 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 City’s December 8th Response In its December 8, 2023 response, the City cited Exemption (n) of the Public Records Law to withhold responsive records. Current appeal In the appeal, the requestor states, “[o]ur request is directly in the public interest, as it involves the potentially illegal actions of an elected official using city resources. Nothing in our request compromises the safety or integrity of any public buildings, offices, or personnel. Rather, it is for a detailed record of exactly how many times said official may have participated in illegal activity on city property/using city resources.” 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

Shawn A. Williams, Esq. SPR23/3011 Page 3 December 27, 2023 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. Under Exemption (n), the City states, “[d]ue to the sensitive nature of the records and potential for compromise of public safety, disclosure is denied under exemption (n) of the public records law…” Based on the City’s response, I find that the City 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 City has not demonstrated that the record is one a terrorist would find useful to maximize damage. Additionally, the City did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the City has not sufficiently explained how disclosure of the records are likely to jeopardize public safety. See PETA at 289-90. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide the requestor 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. The requestor may appeal the substantive nature of the City’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Boston Accountability Network