Bianchi, Eleonora v. Department of Conservation and Recreation (SPR 20260021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2026 SPR26/0021 Michael Tencellent Records Access Officer Department of Conservation and Recreation 10 Park Plaza, Suite 6620 Boston, MA 02116 Dear Mr. Tencellent: I have received the petition of Eleonora Bianchi, of the New Bedford Light, appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 2, 2025, Ms. Bianchi requested the following: [A]ny and all records held by the Department of Conservation and Recreation (DCR) that pertain to or reference U.S. Department of Homeland Security contract PIID 70US0925C70094146. Specifically, I am requesting: 1. The full contract or agreement document associated with DHS PIID 70US0925C70094146; 2. Any amendments, modifications, extensions, or task orders under that contract; 3. Any correspondence, memoranda, or attachments between DCR and DHS (or any DHS component) referencing that contract number. The Department responded on December 16, 2025. Unsatisfied with the Department’s response, Ms. Bianchi petitioned this office, and this appeal, SPR26/0021, 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). 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

Michael Tencellent SPR26/0021 Page 2 January 20, 2026 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 December 16th Response In its December 16, 2025 response, the Department cites Exemption (n) of the Public Records Law 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 ‘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

Michael Tencellent SPR26/0021 Page 3 January 20, 2026 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 December 10th response, with regard to Item 3 of the request, the Department states that “[t]he MPD sharing model is set for approval on Massachusetts Law Enforcement Agencies. We are visible to agencies within 100 Miles of the Milford Police Department. We allow access to out-of-state agencies on a case-by-case basis. We do not allow access “nationwide” on the Flock Safety Network.” In its December 11th response, the Department further explains that “we do not release our settings on investigative tools utilized by our department.” In its December 16th response, under Exemption (n), the Department argues the following: DCR has conducted a search for the requested documents. Documents were located, however these documents are being withheld in their entirety from disclosure under exemption (n) of the Public Records Act, which applies to certain records which, if released, will likely jeopardize public safety or cyber security. The requested documents contain sensitive information regarding communication devices and their potential locations for use by the United States Secret Service. Disclosure of this information could jeopardize the security of law enforcement and national security communications. Based on the Department’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 Department did not provide factual heft to support the withholding of the requested records in their entirety pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. It is further uncertain why the records must be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Michael Tencellent SPR26/0021 Page 4 January 20, 2026 Conclusion Accordingly, the Department is ordered to provide Ms. Bianchi 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. Ms. Bianchi may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi