Jonathan Gerhardson v. University of Massachusetts - Amherst (SPR 20242823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2024 SPR24/2823 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 340F Whitmore Building 181 President’s Drive Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Jonathan Gerhardson appealing the response of the University of Massachusetts – Amherst (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 9, 2024, Mr. Gerhardson requested “the Demonstration Response and Safety Team Standard Operating Procedure as described [at a specified hyperlink].” The University responded on October 11, 2024, denying the request, and claiming that the responsive records are exempt from disclosure under Exemption (n) of the Public Records Law. See G. L. c. 4, § 7(26)(n). Unsatisfied with the University’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/2823, 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 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

Christine M. Wilda SPR24/2823 Page 2 October 24, 2024 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 University’s October 11th Response In its October 11, 2024 response, the University cites Exemption (n) of the Public Records Law for withholding a responsive record. 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, 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

Christine M. Wilda SPR24/2823 Page 3 October 24, 2024 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 October 11th response, under Exemption (n), the University argues the following: The document requested includes tactics for engaging with protestors. Outlining our tactics could assist activists in defeating them, and in disrupting the University’s attempts to negotiate and mediate tense situations, placing the campus community in danger. For those reasons, [the University is] withholding the record requested in accordance with Exemption (n), as release of the material would be likely to jeopardize public safety. Based on the information provided in the University’s response, it is unclear how the requested record resembles the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the record resembles “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the record is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where a requested record bears 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 University did not provide factual heft to support withholding the requested record pursuant to Exemption (n). Specifically, the University has not sufficiently explained how disclosure of the record is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The University must clarify these matters. Conclusion Accordingly, the University is ordered to provide Mr. Gerhardson 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: Jonathan Gerhardson