Phil Thompson v. Massachusetts Port Authority (SPR 20252944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2025 SPR25/2944 Shannon O’Donnell Public Records Access Officer Massachusetts Port Authority One Harborside Drive East Boston, MA 02128 Dear Ms. O’Donnell: I have received the petition of Phil Thompson appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2025, Mr. Thompson requested the following: [1] Electronic badge-in or access control records (including any log-in/log-out data, ID scans, gate access records, or time-tracking logs) for [two identified individuals]; [2] Payroll records and job classification reports for [two identified individuals] for 2010-2025 including: [a] Position titles held, job descriptions, and classification…; [b] Dates of hire, changes in employment status, promotions, or reclassifications; [c] Weekly or biweekly pay stubs or summaries, including total hours paid, overtime hours, and job codes used; [d] Any associate documentation justifying or approving their pay, including supervisor approvals or timecard entries; and [e] Records of payments made through third-party agents, if applicable… [3] Payroll records for all longshoremen employed under Ship Operations and Conley Terminal (2000-2005); [4] Job assignment records/dispatch logs documenting who was scheduled or dispatched to each job during that time; [5] Badge-in/official attendance records, including any gate access logs or security sign-in data, showing actual entry into the facility by those employees. On September 15, 2025, Mr. Thompson modified Item 2 of his request as follows: 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

Shannon O’Donnell SPR25/2944 Page 2 October 22, 2025 [t]o further narrow and clarify my request, I will settle for the following: Payroll and job assignment records Payroll and job assignment records for [two named individuals] covering January 1, 2010, through July 1, 2025, limited to the following job categories at Conley Terminal: Utility[;] Swap[;] Extra Dock[.]” “[F]or these roles, please provide dates worked, hours paid, overtime and corresponding pay.” [a]“Badge-in records (or a date/time verified way to prove they were in attendance at the facility) for [two named individuals] covering the same time period (2010-2025), but only for days/weeks where they held the above listed jobs of: swap, utility, and extra dock jobs. Prior Appeals This request was the subject of prior appeals. See SPR25/2401 Determination of the Supervisor of Records (August 18, 2025) and SPR25/2710 Determination of the Supervisor of Records (September 29, 2025). In my September 29th determination, I found that where the Authority provided a fee estimate which Mr. Thompson did not object to, the basis of Mr. Thompson’s appeal was unclear. The Authority responded on October 1, 2025. Unsatisfied with the response, Mr. Thompson petitioned this office and this appeal, SPR25/2944, 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 Thompson 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 Thompson 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.

Shannon O’Donnell SPR25/2944 Page 3 October 22, 2025 Current Appeal In his October 7, 2025 appeal, Mr. Thompson states “[t]o clarify: I do not wish to appeal the Authority’s fee estimate concerning my September 15 modification to item 2 at this time. My appeal remains focused on the Authority’s withholding of badge-in/attendance data under an overbroad SSI claim, and its assertion that no responsive records exist prior to 2006 for items 3 and 4. Payroll and ship operations/dispatch records should exist for the relevant period prior to 2006. As stated in my October 1 reply, I request that your Office continue to review the appeal on these grounds.” The Authority’s October 1st Response In its October 1, 2025 response, regarding Items 1 and 5, the Authority cited Exemptions [a] and [n] of the Public Records Law to withhold the requested Electronic Badge-In or Access Control Records. With regard to Items 3 and 4, the Authority stated that upon a good faith review of its records, it has no responsive documents. Items 1 and 5 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, 154 (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.

Shannon O’Donnell SPR25/2944 Page 4 October 22, 2025 The Authority cites 33 C.F.R. § 105 and 49 C.F.R. §§ 15, 1520, a federal regulation promulgated by the Transportation Security Administration (TSA) and the Coast Guard, which provides protection on sensitive security information. 49 C.F.R. § 15 provides in pertinent part as follows: This part governs the maintenance, safeguarding, and disclosure of records and information that TSA has determined to be Sensitive Security Information, as defined in § 1520.5. This part does not apply to the maintenance, safeguarding, or disclosure of classified national security information, as defined by Executive Order 12968, or to other sensitive unclassified information that is not SSI, but that nonetheless may be exempt from public disclosure under the Freedom of Information Act. In addition, in the case of information that has been designated as critical infrastructure information under section 214 of the Homeland Security Act, the receipt, maintenance, or disclosure of such information by a Federal agency or employee is governed by section 214 and any implementing regulations, not by this part. 49 C.F.R. § 15 et. seq. In its response, the Authority states the following: While you have attempted to narrow your request for electronic badge-in or access control records, and to characterize the request as “only attendance information (entry/exit timestamps),” we reiterate that these records, if they exist, are considered to be Sensitive Security Information (“SSI”) relative to the security operations at Conley Terminal, which is protected under Federal law and governed pursuant to Title 33 Code Federal Regulations Part 105 and controlled under Title 49 Code Federal Regulations parts 15 and 1520 et seq. These records cannot be disclosed except upon written permission of the United States Coast Guard (“USCG”) or the Administrator of the United States Transportation Security Administration (“TSA”) and only to persons with an operational need to know. Based on the Authority’s response, it is unclear how the cited regulations specifically or by necessary implication prohibit the release of the responsive records. The Authority must clarify this matter. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements,

Shannon O’Donnell SPR25/2944 Page 5 October 22, 2025 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 “because 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 response, the Authority indicates: Additionally, pursuant to Mass. Gen. Laws Ch. 4, §7(26)[(n)] as the disclosure of such records, if they exist, is likely to jeopardize public safety or cyber security at Conley Terminal, these records will not be included in Massport’s response. Based on the Authority’s response, it is unclear how the requested records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “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 Authority did not provide factual heft to support the withholding of the

Shannon O’Donnell SPR25/2944 Page 6 October 22, 2025 requested records pursuant to Exemption (n). Specifically, the Authority has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Authority must clarify these matters. Items 3 and 4 With regard to Mr. Thompson request “to search for responsive records predating 2006,” for Items 3 and 4 the Authority states, Further, you have requested that the Supervisor “Direct the Authority to conduct and document an adequate (including legacy systems, paper archives, contractor- held records, and backups), or to provide a sworn explanation of nonexistence consistent with its retention obligations.” The Authority has conducted a good faith review of its records and determined that it has no responsive documents apart from those identified and for which a fee estimate was provided. You have provided no evidence to the contrary beyond speculation that “Given Massport’s long-standing operations at Conley Terminal, this representation raises concerns of an inadequate search and/or noncompliance with records retention obligations.” There is no requirement for the Authority to prove a negative. Indeed, there is a presumption that public officials perform their duties in an honest and impartial manner. No Duty to Create Records Under the Public Records Law, the Authority is not required to create a record in response to a public records request. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Authority has conducted a good faith review of its records and have confirmed that it possesses no records responsive to Items 3 and 4, I find that this portion of Mr. Thompson’s appeal is resolved. Conclusion Accordingly, the Authority is ordered to provide Mr. Thompson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Mr. Thompson may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Shannon O’Donnell SPR25/2944 Page 7 October 22, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Phil Thompson