Timothy A. Toomey v. Rowley, Town of - Town Administrator (SPR 20160435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 11, 2016 SPR16/435 JosephS. Fair, Esq. Kopelman and Paige, P.C. 10 1 Arch Street Boston, MA 02110 Dear Attorney Fair: I have received the petition of Timothy Toomey appealing the response ofthe Town of Rowley- Town Administrator (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Toomey requested a copy of all investigation finds reports for any investigations of the Town of Rowley-Water Department from 2011 to 2016. Deborah Eagan, Town Administrator for the Town of Rowley provided Mr. Toomey with an electronic copy of a March 6, 2013 report, including copies of the various exhibits that were referenced in the report. Ms. Eagan provided Mr. Toomey with a May 20, 2016letter that you prepared to accompany the report provided to Mr. Toomey. The written response cited G. L. c. Exemptions (a), (c) and (f) as applicable to withhold additional responsive records. Mr. Toomey appealed. 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, § 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, § 1 0( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Joseph P. Fair, Esq. SPR16/435 Page 2 July 11,2016 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. Exemption (c) The Town's response states that both the first and second clause ofExemption (c) permits withholding additional responsive records. Exemption (c) of the Public Records Law permits records custodians to withhold or redact: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26) (c) The Town's response further states that to the extent that the request seeks documents that would constitute personnel information, or umesolved allegations regarding a particular person, the records are being withheld under the personnel clause and the privacy clause respectfully. I find Town fails to meet its burden of explaining what particular records it has in its custody that are withheld under Exemption (c), and how each part of Exemption (c) applies to permit withholding those particular records related to the request. Exemption (f) The Town claims that the responsive records cannot be redacted in such a way that would protect the identification of voluntary witnesses or complainants, therefore the Town is withholding the additional records pursuant to Exemption (f) in their entirety. Exemption (f), the so-called investigatory exemption, allows investigatory officials to withhold: 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.

Mr. Joseph P. Fair, Esq. SPR16/435 Page 3 July 11, 2016 G. L. c. 4, § 7(26) (f) This exemption allows investigative officials to withhold materials that could 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). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. 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. Bougas v. Chie[o{Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. Information that would identify any voluntary witness or complainant may be withheld under Exemption (f); however, the Town has failed to explain what particular records it has within its custody that contain such information. As such I find the Town has failed to meet its burden of specificity in its response. Right to privacy statute The Town claims information may be withheld under the so-called Right to Privacy statute as it operates through Exemption, (a) of the Public Records Law. See G. L. c. 214, § lB. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Mr. Joseph P. Fair, Esq. SPR16/435 Page4 July 11, 2016 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. The Right to Privacy statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § IB provides no alternative legal basis to resist inspection of requested materials). Order I find the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered to provide Mr. Toomey with a revised written response to his request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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 r sec.state.ma.us. cc: Ms. Deborah Eagan Mr. Timothy Toomey