Christian A. Williams v. Boston, City of - Police Department (SPR 20251115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2025 SPR25/1115 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Christian A. Williams, Esq., of the Harvard Law School Criminal Justice Institute, appealing the response of the Boston 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 April 12, 2025, Attorney Williams requested, “… a list of the phone numbers for the iPhone cell phones provided to Boston Police by the Boston Police Department.” The Department responded on April 23, 2025, assigning the request reference number R001914-041225. Unsatisfied with the response, Attorney Williams petitioned this office and this appeal, SPR25/1115, 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. Att’y 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

Christine O’Donnell, Esq. SPR25/1115 Page 2 May 1, 2025 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 April 23rd Response In its April 23, 2025 response, the Department withheld responsive records pursuant to Exemption (n) of the Public Records Law. Current Appeal In his April 23, 2025 petition to this office, Attorney Williams objected to the Department’s withholding of responsive records. 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.’” PETA, 477 Mass. at 289-90. 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.

Christine O’Donnell, Esq. SPR25/1115 Page 3 May 1, 2025 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 April 23rd response, the Department stated: Police phones are public safety tools that are included in plans, policies, procedures and security measures that relate to the security and safety of persons, buildings, and infrastructure. Police phones are used to implement such plans and used as communication devices among police officers and public safety personnel to ensure the effective operations and execution of such plans. A terrorist would find the cell phone numbers of police personnel of use to maximize damage because a potential terrorist could use the phone numbers to make false emergency calls thereby diverting police resources elsewhere. The records sought resemble the records enumerated in Exemption (n) because Department phones are used to provide for the security and safety of persons or buildings. Having police cell phone numbers would be useful information for a terrorist to maximize damage because a terrorist could use this information to occupy phone lines of emergency personnel with false calls. Disclosing this information would cause serious risk to public safety because terrorists wishing to maximize damage could use this information to make hoax public safety calls and reports that would put police resources elsewhere and would allow terrorists to attack in vulnerable places. Release of this information would be of use to terrorists in maximizing damage because the information would allow terrorists to target phone lines and disrupt the communication among police personnel. Because release of these records would be useful to a terrorist to maximize damage the first prong of the test is satisfied. The second part of the analysis requires the Department to exercise reasonable judgment that disclosure of the records jeopardizes public safety. In determining reasonableness, the custodian must provide factual support that disclosure of the record is likely to jeopardize public safety. Because cell phones are public safety equipment used in plans, policies, and procedures that relate to the security and safety of persons, buildings, and infrastructure, it is reasonable for the Department to withhold these records to protect public safety. Department cell phones are an integral public safety tool used in responding to emergencies, attacks, and calls. Because the cell phones are important tools used by the Department in responding to public safety threats, the cell phone numbers would be useful to a terrorist and such information would be of use to maximize damage. The cell phone numbers would be of use in maximizing damage because such information would allow terrorists to disrupt public safety responses and coordination efforts. Releasing roll call sheets and staffing levels would provide access to Department plans that relate to the safety and security of persons, buildings, and infrastructure. By

Christine O’Donnell, Esq. SPR25/1115 Page 4 May 1, 2025 looking at the express language of the statute, the requested records are the records that Exemption (n) seeks to protect from disclosure. G. L. c. 4, § 7(26)(n). Because Department phones are tools used to provide safety and security to buildings and persons, the phones are records contemplated by Exemption (n) and are of use to a terrorist to maximize damage. Therefore, the Department in exercising its reasonable judgment has determined that disclosure of the requested records is likely to jeopardize public safety. Based on the Department’s response, it is unclear how the requested phone numbers resemble the records listed under Exemption (n). See PETA, at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290- 91. Further, the Department has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Williams with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Attorney Williams may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christian A. Williams, Esq.