Nathaniel Edelheit-Rice v. Cambridge, City of - Public Health Department (SPR 20242680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 8, 2024 SPR24/2680 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Nathaniel Edelheit-Rice, of Animal Partisan, 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 April 11, 2024, Attorney Will Lowery, also of Animal Partisan, requested the following: [A]n electronic copy of the following records that were dated or transmitted between December 1, 2022 and the date of this request: [1.] Records related to any registration on file with the Commissioner of Laboratory Animals (“CLA) on behalf of the Massachusetts Institute of Technology (“MIT”) pursuant to Municipal Code of the City of Cambridge § 6.12.030; [2.] MIT Animal Care and Use Committee records provided to the CLA pursuant to Municipal Code of the City of Cambridge § 6.12.060; [3.] Records reflecting any violations reported by CLA to MIT pursuant to Municipal Code of the City of Cambridge §6.12.070; [4.] Records of any inspections or investigations conducted by CLA at MIT collected or created pursuant to the Municipal Code of the City of Cambridge §§ 6.12.080. The City responded on July 8, 2024, providing records in redacted form. Unsatisfied with the City’s response, Mr. Edelheit-Rice petitioned this office, and this appeal, SPR24/2680, was opened as a result. 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 SPR24/2680 Page 2 October 8, 2024 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. 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 July 8th Response In its July 8, 2024 response, the City provides numerous records in redacted form, and cites Exemption (n) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(n). 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 SPR24/2680 Page 3 October 8, 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. In its July 8th response, under Exemption (n), the City argues the following: Some information has been redacted pursuant to G.L. c. 4 §7(26)(n), for the purpose of protecting 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…. could jeopardize public safety and the security and safety of individuals. Based on the City’s response, it is unclear how the redacted information resembles the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear what type of information has been redacted nor how it resembles “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 City did not provide factual heft to support the redaction of the requested records pursuant to Exemption (n). Specifically, the City has not sufficiently explained how disclosure of the redacted information is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The City must clarify these matters.

Seah Levy SPR24/2680 Page 4 October 8, 2024 Conclusion Accordingly, the City is ordered to provide Mr. Edelheit-Rice 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: Nathaniel Edelheit-Rice