Shibley, Craig v. Barre , Town of - Board of Selectmen (SPR 20140079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords February 11, 2014 SPR14/057; SPR14/079 Mr. Craig P. Shibley 2 Lost Oak Road West Boylston, MA 01583 Dear Mr. Shibley: I have received your petition appealing the response of the Town of Barre (Town) and the Office of the Worcester County District Attorney (District Attorney) for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested records related to a forensic audit prepared by Powers & Sullivan, including a Summary of Findings, the forensic audit itself, and the scope of services agreement between the Town and Powers & Sullivan related to this audit. As the findings in these two requests are related I will address both in this written determination. Response by the Town of Barre Town Administrator Heather Lemieux denied your request pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Craig P. Shibley SPR14/057; SPR14/079 Page Two February 11, 2014 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.18 (1979). In her response Ms. Lemieux indicated that an active investigation is underway conducted by the District Attorney. Ms. Lemieux explained that the responsive records are related to that investigation, and would therefore be withheld. Response by the District Attorney In response to a request from a member of my staff, Assistant District Attorney Christopher Hodgens concurred with Ms. Lemieux's assertion that an investigation is ongoing. It does not appear from a review of the file whether the District Attorney responded to your request in writing. The District Attorney is reminded that under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. Conclusion Whereas the responsive records are related to an ongoing investigation of the District Attorney I find both the Town and the District Attorney acted within their discretion in withholding the records from disclosure at this time. The responsive records must be made available at the completion of the investigation, subject to the provisions of the Public Records Law. This administrative appeal is now closed. Supervisor of Records cc: Ms. Heather Lemieux Mr. Christopher Hodgens, Esq.