Sam Whiting v. Sutton, Town of - Public Schools (SPR 20241255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2024 SPR24/1255 Dr. Kimberly Roberts-Morandi Superintendent of Schools Sutton Public Schools 16 Putman Hill Road Sutton, MA 01590 Dear Dr. Roberts-Morandi: I have received the petition of Attorney Samuel J. Whiting, of the Massachusetts Family Institute, appealing the response of the Sutton Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2024, Attorney Whiting requested the following records “in the possession of the Sutton Public Schools during the 2023-2024 school year”: 1. All records containing the phrase “Connections Conference,” “Con Con,” “ConCon,” or “ConCon24.” 2. All budgetary information related to the Connections Conference, including but not limited to: invoices received and/or paid and revenue (including donations and sponsorships) received in connection with the Connections Conference. 3. All records containing the phrase “drag queen,” “Diva D,” “Pride Worcester,” or “Don’t be a drag, just be a queen.” 4. A list of all schools that participated in the Connections Conference (or documents including the names of these schools, if a list does not exist). 5. All photographs or video of the event, held by the SPS or taken on behalf of the SPS by staff or students in attendance at the event. 6. A copy of the permission form required to attend the event. 7. Records showing the staff advisors for the Connections Club. 8. All records verifying CORI and SORI reports were properly obtained by all adults participating in the Connections Conference. The School responded on April 19, 2024, providing numerous responsive records in redacted form, claiming that other records were withheld pursuant to Exemptions (a), (c), (f) and (n) of the Public Records Law, and providing a fee estimate for other records. See G. L. c. 4, § 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

Dr. Kimberly Roberts-Morandi SPR24/1255 Page 2 May 8, 2024 7(26)(a), (c), (f), (n). Unsatisfied with the School’s response, Attorney Whiting 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. 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. 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. Current Appeal In his appeal petition, Attorney Whiting states that he is “writing to appeal SPS’s response to item numbers 2, 4, and 7 listed above,” and contends that the School “misapplied exemption (n) in its response.” The School’s April 19th Response In its April 19, 2024 response, the School cites Exemption (n) of the Public Records Law for withholding and redacting records responsive to Items 2, 4, and 7 of the request. 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

Dr. Kimberly Roberts-Morandi SPR24/1255 Page 3 May 8, 2024 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. 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 April 19th response, with regard to Items 2, 4, and 7 of the request, the School argues the following concerning records withheld and redacted under Exemption (n): Copies of District records responsive to Item No. 2 of [the] Request relating to the 2024 Connections Conference are enclosed [with the School’s response], in redacted form. Redactions: The enclosed records are redacted only as shown on the enclosed copies. These records have been reacted of certain District/Town staff, donor, and participant names and personally identifying information only in accordance with the M.G.L. c. 4, Section 7(26)(n) security exemption, requiring redaction in order to safeguard the physical safety of persons and buildings, inclusive of students, staff, school buildings, the school community, and the wider community. These redactions are due to the recent threats of violence and threats of terroristic acts suffered by the Sutton Public Schools relating to the 2024 Connections Conference held at Sutton High School on March 15, 2024. In addition to receiving related death threats in recent weeks, the District received a bomb threat earlier this week. Disclosure of personally identifying names or contact information in the midst of these horrific and targeted threats could put those

Dr. Kimberly Roberts-Morandi SPR24/1255 Page 4 May 8, 2024 personally identified at risk, as well as increasing risk to associated schools and students, staff, communities, and buildings, as well as increasing risk to other community members and the wider community.... The recent threats to persons’ and buildings’ safety and security aimed at the Sutton Public Schools relating to the 2024 Connections Conference provide “sufficient factual heft” to warrant withholding of this record in accordance with applicable law for valid reasons relating to safety and security. . . . The following District record is responsive to Item No. 4 of [the] Request: List of schools that participated in the 2024 Connections Conference. Withholding: The list of schools that participated in the 2024 Connections Conference is withheld from disclosure under the M.G.L. c. 4, Section 7(26)(n) security exemption, in order to protect the physical safety of the schools’ persons and buildings in light of recent threats of violence and threats of terroristic acts suffered by the Sutton Public Schools relating to the 2024 Connections Conference held at Sutton High School on March 15, 2024. In addition to receiving related death threats in recent weeks, the District received a bomb threat earlier this week. Disclosure of other schools’ names in the midst of these horrific and targeted threats could put those schools and their students, staff, communities, and buildings physical safety at risk, as well as increasing risk to the wider community.... The recent threats to persons’ and buildings’ safety and security aimed at the Sutton Public Schools relating to the 2024 Connections Conference provide “sufficient factual heft” to warrant withholding of this record in accordance with applicable law for valid reasons relating to safety and security. . . . The following District record is responsive to Item No. 7 of [the] Request: List of 2023-2024 staff advisors for the Connections Club. Withholding: The list of 2023-2024 staff advisors for the Connections Club is withheld from disclosure under the M.G.L. c. 4, Section 7(26)(n) security exemption, in order to protect the physical safety of the staff advisors in light of recent threats of violence and threats of terroristic acts suffered by the Sutton Public Schools relating to the 2024 Connections Conference held at Sutton High School on March 15, 2024. In addition to receiving related death threats in recent weeks, the District received a bomb threat earlier this week. Disclosure of the staff advisors’ names in the midst of these horrific and targeted threats could put their physical safety at risk, as well as increasing risk to other staff, students, and the school and wider community....The recent threats to persons’ and buildings’ safety and security aimed at the Sutton Public Schools relating to the 2024 Connections Conference provide “sufficient factual heft” to warrant withholding of this record in accordance with applicable law for valid reasons relating to safety and security. Based on the School’s April 19th response, it is unclear how the redacted information and withheld records resemble the records listed as examples in the statute. See PETA, 477 Mass. at

Dr. Kimberly Roberts-Morandi SPR24/1255 Page 5 May 8, 2024 289. Particularly, it is not clear how the redacted information and withheld records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the School did not provide sufficient factual heft to support the redaction and withholding of the requested records pursuant to Exemption (n). Specifically, the School has not sufficiently explained how disclosure of the records are likely to jeopardize public safety or cyber security. See PETA, at 289-90. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Attorney Whiting 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. Sincerely, Manza Arthur Supervisor of Records cc: Samuel J. Whiting, Esq.