Shibley, Craig v. Barre, Town of - Town Administrator (SPR 20150161)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 23,2015 SPR14/659; SPRlS/161 Ms. Heather Lemieux Town Administrator Town ofBarre 40 West Street, Suite 697 Barre, MA 01005 Dear Ms. Lemieux: I have received the petition of Craig Shibley appealing the response of the Town of Barre (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested a copy of the "Town's management response to Melanson Heath & Co's FY' 10 annual audit which it submitted on August 25, 2011." This request was the subject of a prior appeal of Mr. Shibley's. See SPR14/659 Determination of the Supervisor ofRecords (February 17, 2015). In a request dated February 23, 2015, Mr. Shibley requested copies of management letters related to Melanson Heath & Co. audits for the years 2004, 2005, 2007, 2008 and 2009 along with the Town's management responses to these audits. Mr. Shibley also requested a copy of a Forensic Audit Report provided by Powers & Sullivan. In two essentially identical responses dated February 26, 2015, you denied Mr. Shibley's requests, claiming that the responsive records are exempt from disclosure pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). Due to the similar nature of these requests, responses, and appeals, I will address the issues raised in both SPR14/659 and SPR15/161 in this Determination. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" isbroadlydefined to include all documentary materials or data, regardless of physical form ot characteristics, made or received by any officer or employee of any town 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(c); see also Dist. Attorney for the Norfolk OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Heather Lemieux SPR14/659; SPR15/161 Page Two June 23, 2015 Dist. v. Flatley, 419 Mass. 5 07, 511 ( 199 5) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Exemption (f) 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 under Exemption (f). 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 Mass 59, 62 (1976). The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Id. However, Exemption (f) does not apply to every document that is contained within an investigatory file; rather, a custodian must offer specific proofthat the responsive documents fall within this exemption. Id. at 65-66. In both responses, the Town claims that the requested records are exempt from disclosure in their entirety pursuant to Exemption (f) because they are being used in a criminal case against the Town's former tax collector. See Commonwealth v. Marcia Langelier, Docket #2013 WOCR 001134. You state that the requested records were used to indict the former tax collector and are currently being used in the Commonwealth's case against said tax collector to corroborate the case against her for fraud/embezzlement of public funds. You further state that "[t]he case has not concluded; it is currently in the discovery phase," and that release of these documents "would negatively influence this ongoing case." However, the Town did not explain with specificity how disclosure of each of the responsive records would reveal confidential investigative techniques or witness statements. Further, while the Town claims the responsive records were used to indict the former tax collector, it did not explain how the investigation remains ongoing or how disclosing the records would alert suspects to the activities of investigative officials. As a result, the Town has failed to prove that disclosure of the responsive records "would probably so prejudice the possibility of

Ms. Heather Lemieux SPR14/659; SPR15/161 Page Three June 23, 2015 effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). See G. L. c. 4, § 7(26)(£). As a result, the Town failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (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, § lO(a). Accordingly, whereas the Town has not overcome the presumption that the requested records are public, the Town is hereby ordered, within ten (10) days of this order, to provide Mr. Shibley with the requested records. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Shibley a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Mr. Craig Shibley