Jonathan Gerhardson v. Chicopee Electric Light (SPR 20241539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 18, 2024 SPR24/1539 Natalie Colberg Chicopee Electric Light 725 Front Street Chicopee, MA 01020 Dear Ms. Colberg: I have received the petition of Jonathan Gerhardson appealing the response of Chicopee Electric Light (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2024, Mr. Gerhardson requested the following: [1.] Warrants, subpoenas, or other requests for logs of internet traffic, its metadata, or other information generated through the use of Crossroads Fiber as an internet service provider from any person, agency, or other source made between May 1 2023 and May 1 2024. (Please exclude any self-requesters; i.e. a customer requesting a copy of their own internet traffic.) [2.] All communications between Chicopee Electric Light and the requestors of this information. Previous Appeal This request was the subject of a previous appeal. See SPR24/1374 Determination of the Supervisor of Records (May 17, 2024). In my May 17th determination, I closed SPR24/1374 in light of the City providing supplemental responses to Mr. Gerhardson on May 9, and May 10, 2024. Unsatisfied with the City’s responses, Mr. Gerhardson 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 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

Natalie Colberg SPR24/1539 Page 2 June 18, 2024 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. The City’s May 9th and May 10th Responses In its May 9, and May 10, 2024 responses, the City cites Exemptions (a) and (f) of the Public Records Law for withholding three responsive records. See G. L. c. 4, § 7(26)(a), (f). 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.

Natalie Colberg SPR24/1539 Page 3 June 18, 2024 In its responses, the City cites 18 U.S.C. § 2703(c), which provides in pertinent part: Records concerning electronic communication service or remote computing service.--(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-- (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-- (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer. 18 U.S.C. § 2703(c). Additionally, the City cites 18 U.S.C. 2705, which provides in pertinent part:

Natalie Colberg SPR24/1539 Page 4 June 18, 2024 (a) Delay of notification.-- (1) A governmental entity acting under section 2703(b) of this title may-- (A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or (B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection. . . . (b) Preclusion of notice to subject of governmental access.--A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. 18 U.S.C. 2705. Additionally, the City cites a Pennsylvania statute, 18 Pa. C.S. 5743.1(a)(7), which provides in pertinent part as follows: Without court approval, no person or entity may disclose to any other person or entity, other than to an attorney in order to obtain legal advice, the existence of the subpoena for a period of up to 90 days. 18 Pa. C.S. 5743.1(a)(7). Under the statutes cited above, the City argues the following: The City received the following subpoenas investigating criminal sexual abuse of children during the relevant time period: 1. 10/2/23 from a Massachusetts District Attorney and ordering non- disclosure under 18 USC sec. 2703(c) and 2705(1)(B). 2. 12/11/23 from the Massachusetts Attorney General and ordering non-disclosure under 18 USC sec. 2705. 3. 3/18/24 from a Pennsylvania District Attorney and ordering non- disclosure under 18 Pa. C.S. 5743.1(a)(7).

Natalie Colberg SPR24/1539 Page 5 June 18, 2024 Based on the information provided in the City’s May 9th and May 10th responses, where the responsive records are the type contemplated under the statutes cited above, I find that the City has met its burden to withhold the responsive records under the statutes cited above as they operate through Exemption (a) of the Public Records Law. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the City argues the following: Exemption (f) applies because each law enforcement agency certified each subpoena was issued as part of an active criminal investigation, and indicated disclosure could endanger the life or safety of a person or result in destruction of evidence. The City supports law enforcement agencies and does not want to jeopardize any ongoing investigations or jeopardize the safety of anyone. In this case, where the City has met its burden to withhold the responsive records under Exemption (a), I find it is unnecessary to opine on the City’s claims under Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gerhardson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Natalie Colberg SPR24/1539 Page 6 June 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson John J. Ferriter, Esq.