Heather MacDonald v. Hull, Town of - Town Counsel (SPR 20241632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2024 SPR23/1632 James B. Lampke, Esq. Town Counsel Town of Hull 115 North Street, Suite 3 Hull, MA 02043 Dear Attorney Lampke: I have received the petition of Heather MacDonald appealing the response of the Town of Hull (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2023, Ms. MacDonald requested, “... the on-duty police and fire personnel on 10/17/23 and 10/18/23 ... in the hours between 3 pm-5 pm on 10/18 but would like all 48 hours.” On October 26, 2023, Ms. MacDonald modified her request and stated to “cancel the request for the police shifts and [Ms. MacDonald] requested ... [an identified Captain’s] shift information from Chief. . .” Previous appeal and reconsiderations This request was the subject of a previous appeal and requests for reconsideration by Ms. MacDonald and the Town. See SPR23/2804 Determinations of the Supervisor of Records (December 5, 2023, March 12, 2024, and April 18, 2804). In my April 18th determination, I declined to reverse my March 12th findings. The Town responded on April 18, 2024. Unsatisfied with the Town’s response, Ms. MacDonald petitioned this office and this appeal, SPR24/1632, 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

James B. Lampke, Esq. SPR24/1632 Page 2 June 14, 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. The Town’s April 18th Response In its April 18, 2024 response, the Town stated, “... it was decided . . . to produce the requested information, which as we understand it from your office is for the shift times of [an identified Fire Captain] for October 17, 2023 and October 18, 2023. Those records are attached to this email.” In a prior response, the Town asserted Exemption (n) in support of the redactions. See SPR23/2804. Current appeal In her appeal, Ms. MacDonald states, “... the information provided does not provide the length of the shift or whether it is AM/PM. Do the column headers really need to be redacted here? (Do they contain the clarification that I am looking for?).” Exemption (n) Exemption (n) permits the withholding of: 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). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id.

James B. Lampke, Esq. SPR24/1632 Page 3 June 14, 2024 Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong 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.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case.” Id. at 289-90. In its response, the Town asserted, “[s]hift details would be exempt from disclosure ... [because] ... such information is likely to impair and jeopardize public safety [and] once information is released it would be accessible by anyone.” Based on Ms. MacDonald’s claims, in conjunction with the Town’s response, it is unclear what exemption the Town is claiming to withhold the redacted portions from disclosure. In its prior November 8, 2023 response, the Town had claimed Exemption (n) to redact portions of the records. In my March 12, 2024 determination, I found that the Town did not provide sufficient factual heft to support the withholding of the requested records under Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. Consequently, if the Town is claiming Exemption (n) to redact the records, it must explain with specificity how Exemption (n) applies to redact “the length of the shift or the AM/PM status[.]” The Town must clarify. Conclusion Accordingly, the Town is ordered to provide Ms. MacDonald with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. MacDonald may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

James B. Lampke, Esq. SPR24/1632 Page 4 June 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Heather MacDonald