Philip Droney v. Cambridge, City of - Office of the City Clerk (SPR 20241881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2024 SPR24/1881 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Philip Droney appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 30, 2024, Mr. Droney requested: [1] …a copy of parking ticket #311116492 issued to MA Reg . . . on January 2, 2024[;] [2] …any written documentation including notes, photos and images in relation to parking ticket #311116492[; and] [3] …the name of employee, badge #099119 The City provided a response on June 17, 2024. Unsatisfied with the City’s response, Mr. Droney petitioned this office and this appeal, SPR24/1881, was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Droney’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Seah Levy SPR24/1881 Page 2 July 12, 2024 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. See 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 June 17th response In its June 17, 2024 response, with respect to Items 1 and 2 of the request, the City provided responsive records and stated, “[b]ecause you are asking for records regarding your own parking ticket and correspondence, some information which would otherwise be redacted pursuant to law has been left visible.” With respect to Item 3 of the request, the City cited Exemption (n) of the Public Records Law to withhold the requested employee name. 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,

Seah Levy SPR24/1881 Page 3 July 12, 2024 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), the City argues, “[w]ith regards to item 3 of your request, this information is being withheld pursuant to G. L. c. 4 section 7(26)(n), for the purpose of protecting public safety and the security and safety of individual.” Based on the City’s response, I find that the City has not met its burden to withhold the responsive record pursuant to Exemption (n) of the Public Records Law. Specifically, the City has not demonstrated how the withheld information resembles the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, the City has not demonstrated how information such as the employee’s name resembles “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. Further, the City has not 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 City did not provide sufficient factual heft to support the redaction and withholding of the requested records pursuant to Exemption (n). Specifically, the City has not sufficiently explained how the disclosure of the employee’s name is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Droney 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. Mr. Droney may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Seah Levy SPR24/1881 Page 4 July 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Philip Droney