Sam Whiting v. Sutton, Town of - Public Schools (SPR 20241603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 11, 2024 SPR24/1603 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1255 Determination of the 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 SPR24/1603 Page 2 June 11, 2024 Supervisor of Records (May 8, 2024). In my May 8th determination, I found that the School did not meet its burden to withhold records responsive to Items 2, 4, and 7 of the request under Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). Subsequently, the School responded on May 22, 2024, reiterating its claims under Exemption (n) for withholding the responsive records. Unsatisfied with the School’s response, Attorney Whiting 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. 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 School’s May 22nd Response In its May 22, 2024 response, the School reiterates its claims under 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 judgment of the record custodian, subject to review by the supervisor of public

Dr. Kimberly Roberts-Morandi SPR24/1603 Page 3 June 11, 2024 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. Under Exemption (n), with regard to Item 2 of the request, the School argues the following: The produced records were redacted only as shown on the produced copies, and were only redacted of individuals’ names and other personally identifying or contact information identifying sponsors, donors, and District staff associated with the 2024 Connections Conference.... While the disclosure of names and other personally identifying contact information may not closely resemble the categories of records expressly stated as examples in the statute, they are most certainly records which a terrorist would find useful to maximize damage. There is presently a sector of certain interest communities, both locally and far flung, that seeks to inflict terror, in the form of emotional harm and mental anguish, upon those whose ideologies may differ from theirs. There is a real risk that a subset of that sector may eventually act on the threats of infliction of physical destruction and/or violence already threatened, against individuals and schools. In this case, various forms of diversity celebrated by the Connections Conference event, in particular, relating to those who might identify as LGBTQ+, and their advocates and allies, are being subjected to hate and threats. Targeted threats of violence, destruction, and death have already been waged against individuals and schools known to be associated with the Connections Conference. Making

Dr. Kimberly Roberts-Morandi SPR24/1603 Page 4 June 11, 2024 additional personally identifiable information public would further inform and embolden these bad actors, providing them with additional targets, in the form of both additional individuals and additional physical and cyber locations. These bad actors may at some point resort to actual physical violence and/or destruction, in addition to the violent threats and cyber/financial crimes that they have already inflicted upon individuals and schools associated with the 2024 Connections Conference. District staff has been targeted dozens of times already and has been the victim of several crimes, some seemingly originating from out of state, and requiring Federal law enforcement involvement. The District is exercising reasonable judgment under PETA in determining that the risks of disclosing the redacted information - which is limited to the names/identities of individuals and any contact information and/or physical location, far outweigh the public’s interest in disclosure. With regard to Item 4 of the request, the School argues the following: 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 those schools’ persons and buildings in light of recent threats of violence and threats of terroristic acts suffered by the Sutton Public Schools and staff relating to the 2024 Connections Conference held at Sutton High School on March 15, 2024.... While the disclosure of a list of schools may not closely resemble the categories of records expressly stated as examples in the statute, this is certainly a record which a terrorist would find useful to maximize damage. There is presently a sector of certain interest communities, both locally and far flung, that seeks to inflict terror, in the form of emotional harm and mental anguish, upon those whose ideologies may differ from theirs. There is a real risk that a subset of that sector may eventually act on the threats of infliction of physical destruction and/or violence already threatened, against individuals and schools. In this case, various forms of diversity celebrated by the Connections Conference event, in particular, relating to those who might identify as LGBTQ+, and their advocates and allies, are being subjected to hate and threats. Targeted threats of violence, destruction, and death have already been waged against individuals and schools known to be associated with the Connections Conference. Making additional schools’ involvement widely known to the public would further inform and embolden these bad actors, providing them with additional targets, in the form of both additional individuals and additional physical and cyber locations. These bad actors may at some point resort to actual physical violence and/or destruction, in addition to the violent threats and cyber/financial crimes that they have already inflicted upon individuals and schools associated with the 2024 Connections Conference. District staff has been targeted dozens of times already and has been the victim of several crimes, some seemingly originating from out of state, and requiring Federal law enforcement involvement. The District is exercising reasonable judgment under PETA in determining that the risks of disclosing this list of

Dr. Kimberly Roberts-Morandi SPR24/1603 Page 5 June 11, 2024 schools involved in the 2024 Connections Conference far outweigh the public’s interest in disclosure. With regard to Item 7 of the request, the School argues the following: 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 and their families in light of recent threats of violence and threats of terroristic acts suffered by the Sutton Public Schools and individual staff members relating to the 2024 Connections Conference held at Sutton High School on March 15, 2024.... While the disclosure of a list of staff advisors may not closely resemble the categories of records expressly stated as examples in the statute, this is certainly a record which a terrorist would find useful to maximize damage. There is presently a sector of certain interest communities, both locally and far flung, that seeks to inflict terror, in the form of emotional harm and mental anguish, upon those whose ideologies may differ from theirs, particular school staff members who they may perceive as “influencing” students. There is a real risk that a subset of that sector may eventually act on the threats of infliction of physical destruction and/or violence already threatened, against individuals and schools. In this case, various forms of diversity celebrated by the Connections Conference event, in particular, relating to those who might identify as LGBTQ+, and their advocates and allies, are being subjected to hate and threats. Targeted threats of violence, destruction, and death have already been waged against individuals and schools known to be associated with the Connections Conference. Making additional staff members' involvement widely known to the public would further inform and embolden these bad actors, providing them with additional targets, in the form of both additional individuals and additional physical and cyber locations. These bad actors may at some point resort to actual physical violence and/or destruction, in addition to the violent threats and cyber/financial crimes that they have already inflicted upon individuals and schools associated with the 2024 Connections Conference. District staff has been targeted dozens of times already and has been the victim of several crimes, some seemingly originating from out of state, and requiring Federal law enforcement involvement. The District is exercising reasonable judgment under PETA in determining that the risks of disclosing this list of staff advisors involved in the 2024 Connections Conference far outweigh the public's interest in disclosure. Based on the School’s May 22nd response, I find that the School has not met its burden to redact and withhold the responsive records pursuant to Exemption (n) of the Public Records Law. Specifically, the School has not demonstrated how the redacted information and withheld records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, the School has not demonstrated how information such as lists of donors, public employees, and public schools participating in a conference resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. Further, the School has not

Dr. Kimberly Roberts-Morandi SPR24/1603 Page 6 June 11, 2024 demonstrated how such 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). In this case, 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 the disclosure of information such as the names of sponsors, donors, staff, and public schools participating in a conference is likely to jeopardize public safety or cyber security. See PETA, at 289-90. 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. Caitlin Paget