Craig P. Shibley v. Office of the Attorney General - Environmental Protection Division (SPR 20160056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 24, 2016 SPR16/056 Ms. Lorraine A. G. Tarrow, Esq. Assistant Attorney General Offl.ce ofthe Attorney General General Counsel's Office One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Craig Shibley appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, in a request dated December 8, 2015, Mr. Shibley stated "[ s ]hould this probe no longer be active, I'm requesting the AGO forward" the investigative file related to the Worthington Fire-Rescue Association, Inc. In its response dated January 14,2016, the AGO stated, "[t]o the extent that the AGO possesses responsive records, they would fall within an exemption from the definition of public records," pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Mr. Shibley appealed this response, stating that it lacked specificity. 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" 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 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 Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Subsequent to the opening of this appeal the AGO clarified its response. In his request, Mr. Shibley sought records only "[s] hould this probe no longer be active." In a letter dated One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lorraine A. G. Tarrow, Esq. SPR16/056 Page 2 February 24, 2016 February 19,2016 you confirm the investigation "remains active" and indicate the responsive records are exempt from disclosure under Exemption (f). Whereas the AGO has explained in its February 19 letter that the probe "remains active," I find the AGO may withhold responsive records pursuant to Exemption (f). See Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Accordi gly, I will consider this administrative appeal closed. cc: Mr. Craig Shibley