Meg Ruley v. Nantucket, Town of - Police Department (SPR 20250471)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2025 SPR25/0471 Deputy Chief Charles Gibson Records Access Officer Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554 Dear Deputy Chief Gibson: I have received the petition of Meg Ruley appealing the response of the Nantucket Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2025, Ms. Ruley requested the following: [A] copy of the plans, the name and contact information of the vendor who installed the system, and the name and contact information of the vendor who installed the wells for the open loop geo thermal heating and cooling system installed at the Police Department at 4 Fairgrounds Road. I understand the Department assigned reference number NPD-48-2025 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/0267 Determination of the Supervisor of Records (February 11, 2025). In my February 11th determination, I ordered the Department to clarify its claims under Exemption (n) of the Public Records Law for withholding responsive records. Subsequently, the Department responded on February 17, 2025. Unsatisfied with the Department’s response, Ms. Ruley petitioned this office, and this appeal, SPR25/0471, 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

Deputy Chief Charles Gibson SPR25/0471 Page 2 March 3, 2025 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 Department’s February 17th Response In its February 17, 2025 response, the Department reiterates its claims under Exemption (n) for withholding responsive 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, 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

Deputy Chief Charles Gibson SPR25/0471 Page 3 March 3, 2025 ‘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 February 17th response, under Exemption (n), the Department argues the following: The first prong of exemption (n) as cited by the Court, questions the type of record withheld. In this case, the Department is withholding blueprints of the Public Safety Facility’s geo-thermal system. These documents fit squarely within the type of records listed in exemption (n). The PETA opinion went further to require an inquiry as to whether the records could be useful in maximizing damage and jeopardize public safety. Here, the documents withheld show the design, sequence of operation and location of critical components to the geo- thermal system. Identification of system components would provide knowledge to persons on methods to disable the system and thus severely limit the operation of public safety services on Nantucket. The Second prong of exemption (n) as cited by the Court, probes the factual and contextual support for the proposition that disclosure of the record is “likely to jeopardize public safety”. As noted above, damage to the geo-thermal system would severely limit the environmental capabilities of the PSF. The critical geo- thermal system regulates the PSF building heating and cooling systems. The cooling system maintains the data center which contains all emergency 911, radio communications, local telecommunications equipment, public safety dispatch, police, fire and mobile records system as well as the entire municipal computer network. Environmental temperature and ventilation systems in the detention facility are also served by the geo-thermal system as well. If the geo-thermal system was compromised, it would adversely affect and jeopardize public safety on Nantucket. The Department, as the records custodian, has used reasonable judgement in withholding these records as we believe that disclosure of the records could jeopardize public safety and such withholding is allowed by exemption (n). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R.

Deputy Chief Charles Gibson SPR25/0471 Page 4 March 3, 2025 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Meg Ruley