Bogran-Acosta, Alida v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20140403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 21, 2014 SPR14/403 Ms. Alida Bogd.n-Acosta Sugarman, Rogers, Barshak & Cohen, P.C. 10 1 Merrimac Street Boston, MA 02114-4 73 7 Dear Ms. Bogran-Acosta: I have received your petition appealing the response of the Office of the Attorney General (AGO) to your public records request. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2) (explaining appeals process). Specifically, you requested copies of all records received by the AGO's Fair Labor Division regarding its investigation of a specifically identified entity. On April28, 2014, an Assistant Attorney General in the AGO's Fair Labor Division provided you the records responsive to your request, and waived all applicable fees allowed by the Public Records Law Access Regulations. The Fair Labor Division redacted the name and signature of the complainant, citing the investigatory and privacy exemptions in the Public Records Law. G. L. c. 4, § 7(26)(c) and (f). I find that an analysis of Exemption (c) is not necessary to this determination. Exemption (f) In a July 31, 2014 discussion, an Assistant Attorney General with the AGO informed an attorney on my staff that the AGO redacted the name and signature of the complainant on the complaint form pursuant to Exemption (f) of the Public Records Law. Exemption (f) provides for 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) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Alida Bogran-Acosta SPR14/403 Page Two August 21, 2014 Exemption (f) allows investigative officials to withhold materials that compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). There are certain categories of information, however, that a law enforcement agency may withhold without demonstrating prejudice to investigative efforts. For example, an investigative agency does not have to demonstrate prejudice to withhold the identities of voluntary witnesses, victims, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). The exemption is designed to allow investigative officials to provide an assurance of confidentiality to individuals who come forward with information so that they will speak openly about matters. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Any details in the records, which if released would create a risk of identifying an individual who is a victim, or who makes a complaint, or who volunteers as a witness are indefinitely exempt. Globe Newspaper Co., 388 Mass. at 438. Therefore, based upon the explanation provided by both Assistant Attorneys General, I find that the AGO has properly withheld the name and signature of the complainant pursuant to Exemption (f). Status of the Requester In your July 16, 2014letter to this office, you state that you are entitled to obtain an un redacted copy of the complaint disclosing the identity of the complainant. Your status as an attorney representing a particular party in the matter before the Fair Labor Division of the AGO does not provide you or any client you may represent with any greater right of access than any other individual in the public realm. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requesting party. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). Therefore, it may be preferable for you to seek the withheld records through any discovery process that may be available to you in your administrative action, or through a court order.

Ms. Alida Bogran-Acosta SPR14/403 Page Three August 21, 2014 Accordingly, whereas the AGO has properly withheld the responsive records pursuant to Exemption (f), your administrative appeal is closed. Shawn A. Williams Supervisor of Records cc: Ms. Lillian Hirales, Esq. Ms. Lorraine A.G. Tarrow, Esq.