Paul Burns v. Executive Office for Administration & Finance (SPR 20241845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1845 Carlos E. Loredo, Esq. Associate Counsel Executive Office for Administration and Finance State House, Room 373 24 Beacon Street Boston, MA 02133 Dear Attorney Loredo: I have received the petition of Paul Burns appealing the response of the Executive Office for Administration and Finance (Office/A&F) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2024, Mr. Burns requested the following records “pertaining to the planned shelter at Bay State Correctional Center in Norfolk. . .” A) the email addresses for [a list of three] Commonwealth employees ... B) a copy of the implementation/readiness plan for the shelter, detailing what actions are to be performed on what dates leading up to AND after the shelter opening date C) records of all upgrades, construction, painting, retrofit, razor wire removal, including the costs and, when outsourced, names of contractors/vendors, leading up to and after the shelter opening date. D) records of what the steady state monthly cost is expected to be for the shelter after the opening date, delineated by line item. The Office responded on June 21, 2024. Unsatisfied with the Office’s response, Mr. Burns petitioned this office, and this appeal, SPR24/1845, 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

Carlos E. Loredo, Esq. SPR24/1845 Page 2 July 10, 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 Office’s June 21st and July 3rd Responses In its June 21, 2024 response, the Office provides records responsive to Part A of the request, and states that it is withholding records responsive to Parts B, C, and D pursuant to Exemption (d) of the Public Records Law, and other records pursuant to Exemption (n). See G. L. c. 4, § 7(26)(d), (n). In a letter to this office on July 3, 2024, the Office reiterates its claims for withholding records under Exemptions (d) and (n) of the Public Records Law. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its June 21st response, under Exemption (d), “[r]egarding parts B, C, and D of [the] request for the implementation plan and certain upgrades and cost records, [the Office is] withholding responsive documents because they contain recommendations on legal and policy

Carlos E. Loredo, Esq. SPR24/1845 Page 3 July 10, 2024 matters in an ongoing deliberative process.” Additionally, in its July 3rd response, the Office further argues the following: Regarding parts B, C, and D, A&F is withholding one implementation plan document and three documents related to improvement costs and monthly costs. A&F is properly withholding such documents because they relate to recommendations on legal and policy matters in an ongoing deliberative process.... Here, the responsive documents pertain to the preparation, operation and expected population of the Bay State Site. The policies contained in these documents remain under deliberation as there are ongoing considerations such as capital improvements, permitting and costs due to the multi-phased opening approach for the Bay State Site. Based on the Office’s response, although portions of the records may fall under Exemption (d), it is unclear how the records can be withheld in their entirety. Also, it is not clear whether the withheld records contain factual information that can be segregated from the records. The Office is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 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).

Carlos E. Loredo, Esq. SPR24/1845 Page 4 July 10, 2024 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 June 21st response, under Exemption (n), the Office states that it is “withholding some responsive records because they are sufficiently related to the safety and security of the Bay State Correctional Center which in my reasonable judgment would jeopardize public safety if disclosed.” Additionally, in its July 3rd response, the Office argues the following: Further, of the three documents mentioned above as being responsive to part C of the Request, one is also being withheld because it is sufficiently related to the safety and security of the Bay State Site which in [the Office’s] reasonable judgment would jeopardize public safety if disclosed. . . . In this case, A&F is withholding certain photographs of the internal layout of the Bay State Site as allowed under the SJC’s test. The first prong is met because the photographs if released, would pose a present security risk to resident families. The photographs can be used to easily ascertain the internal layout of parts of the Bay State Site, and the location of dormitories and their proximity to outer fences, which is useful information for anyone looking to harm resident families. Moreover, the public release of such photographs, for similar reasons, would negatively impact security measures if the Bay State Site is reopened as a correctional facility in the future. The second prong is also met given that the Bay State Site will house children and families, requiring emergency housing assistance and that the facility itself is being retrofitted to a less secure structure than it was before. Based on the Office’s response, it is unclear how the requested records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the 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 Office did not provide factual heft to support the withholding of the

Carlos E. Loredo, Esq. SPR24/1845 Page 5 July 10, 2024 requested records pursuant to Exemption (n). Specifically, the Office has not sufficiently explained how disclosure of the records are likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Burns 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: Paul Burns