Jonathan Gerhardson v. Secretary of the Commonwealth-Administrative Services Division (SPR 20241949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1949 Sofya Gray Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place Room 1710 Boston, MA 02108 Dear Ms. Gray: I have received the petition of Jonathan Gerhardson appealing the response of the Secretary of the Commonwealth - Administrative Services Division (Division) 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, “a copy of the memo from SELCO referenced in SPR24/1559.” The Division responded on July 8, 2024. Unsatisfied with the Division’s response, Mr. Gerhardson petitioned this office and this appeal, SPR24/1949, 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. 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

Sofya Gray SPR24/1949 Page 2 July 23, 2024 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 Division’s July 8th Response In its July 8, 2024 response, the Division cited 18 U.S.C. § 2705 to redact responsive records. Current appeal In his appeal, Mr. Gerhardson states, “since there is no court order relating to the email, I do not think exemption (a) should apply.” 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 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 July 8th response, the Division 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--

Sofya Gray SPR24/1949 Page 3 July 23, 2024 (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, the Division stated, “release of the withheld email would potentially violate 18 U.S.C. 2705(b).” When withholding these communications, 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. 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. …

Sofya Gray SPR24/1949 Page 4 July 23, 2024 …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 the Division’s response, where the responsive records are the type contemplated under the statute cited above, I find that the Division has met its burden to redact 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