Jonathan Gerhardson v. Shrewsbury Electric & Cable Operations (SPR 20241827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1827 Valerie B. Clemmey Communications Coordinator Shrewsbury Electric & Cable Operations 100 Maple Avenue Shrewsbury, MA 01545 Dear Ms. Clemmey: I have received the petition of Jonathan Gerhardson appealing the response of the Shrewsbury Electric & Cable Operations (SELCO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 9, 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 SELCO as an internet service provider from any person, agency, or other source made between May 1, 2024 and May 1, 2024… [2.] All communications between SELCO, or other Shrewsbury officials, and the requestors of this information Prior Appeal This request was the subject of a prior appeal. See SPR24/1559 Determination of the Supervisor of Records (June 6, 2024). In my June 6th determination, I found that SELCO had not met its burden to withhold records under Exemption (c) of the Public Records Law and 18 U.S.C. § 2705. SELCO responded on June 20, 2024. Unsatisfied with the SELCO’s response, Mr. Gerhardson petitioned this office and this appeal, SPR24/1827, 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

Valerie B. Clemmey SPR24/1827 Page 2 July 8, 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. SELCO’s May 22nd Response In its June 20, 2024 response, SELCO cited 18 U.S.C. § 2703(b) and 18 U.S.C. § 2705 to withhold responsive records. Current appeal In his appeal, Mr. Gerhardson states, “I specifically take issue with SELCO’s usage of ‘cannot confirm nor deny.’ There is no precedent for a Glomar response under Massachusetts law, and allowing for such a response would greatly undermine the utility of the Massachusetts Public Records Law, in my opinion... Why has SELCO even brought up 18 USC 2703 & 2705 when there are plenty of other statutes which could exempt a record from disclosure under [Exemption (a)] of the Public Records Law? If there are no responsive documents, SELCO absolutely can, and I believe must, affirmatively state so. If exempt records exist they must also affirmatively state so. A discussion of hypothetical situations in which there may be exempt records does not meet the bar for specificity outlined in [the Supervisor of Records’] previous determination.” 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

Valerie B. Clemmey SPR24/1827 Page 3 July 8, 2024 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. In its June 20th response, SELCO cites 18 U.S.C. § 2703(b), which provides in pertinent part: Contents of Wire or Electronic Communications in a Remote Computing Service.--(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-- (A) without required notice to the subscriber or customer, if the governmental entity 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; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity— (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service-- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to

Valerie B. Clemmey SPR24/1827 Page 4 July 8, 2024 access the contents of any such communications for purposes of providing any services other than storage or computer processing. 18 U.S.C. § 2703(b). Under this statute, SELCO stated, “[i]n other words, such warrants or subpoenas may include confidentiality obligations to ensure that the subscriber does not learn of an investigation.” Additionally, the SELCO cites 18 U.S.C. 2705, which provides in pertinent part: (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. Under this statute, SELCO stated the following: The period for withholding the issuance of the subpoena may be extended. Thus, disclosure of the existence of any such subpoenas to a third party without a confidentiality obligation could tip off a subscriber or other person under investigation, which would defeat the very purpose of this statute. At a minimum, this statute implies that any such confidential subpoenas or warrants are not public records at least until the confidentiality obligation ceases.

Valerie B. Clemmey SPR24/1827 Page 5 July 8, 2024 Accordingly, to the extent that the request seeks information that would disclose the receipt of a confidential subpoena or warrant, SELCO would be prohibited by law or order from disclosing such information. As such, SELCO cannot confirm or deny whether any confidential subpoenas or warrants have been received. Similarly, SELCO cannot confirm or deny the issuance or receipt of communications relating to any confidential subpoenas or warrants. … …SELCO hereby clarifies that it only seeks to withhold confidential subpoenas or warrants and related correspondence to the extent any such confidential subpoenas or warrants have been received. Based on the information provided in SELCO’s response, where the responsive records are the type contemplated under the statutes cited above, I find that SELCO 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. 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). Sincerely, Manza Arthur Supervisor of Records cc: Jonathon Gerhardson Christopher Roy