Nestor Ramos v. Boston, City of - Office of the Mayor (SPR 20161142)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 16, 2016 SPR16/1142 Audrey Coulter Associate Press Secretary Office of Mayor Martin J. Walsh 1 City Hall Square, Suite 500 Boston, MA 02201 Dear Ms. Coulter: I have received the petition of Nestor Ramos, of the Boston Globe, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ramos requested all records, filings and documents associated with a specifically identified permit number, including but not limited to Atlantic Drain's application submitted to Boston Water and Sewer. You denied his request in a response dated December 1, 2016, claiming that the responsive record may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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, § lO(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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Audrey Coulter SPR16/1142 Page 2 December 16, 2016 Exemption (f) The City claims it may withhold the requested records 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) 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 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 of Boston, 378 Mass. 281, 290 n.18 (1979). In its December 1 response you state the Suffolk County District Attorney's Office (DAO) requested the City withhold copies of permits issued to Atlantic Drain pending the outcome of a criminal investigation. You indicate the "City cannot describe with greater specificity how releasing these documents would compromise the [DAO]'s investigation because the City is not privy to the details of this inquiry; the City believes, however, that the [DAO]'s request is reasonable due to the tragic circumstances of the accident." You also explain the City intends to release the documents as soon as the DAO indicates that their release will not jeopardize its investigation. I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. You indicated the City would provide a supplemental response to Mr. Ramos regarding this matter. In particular, this response must provide details regarding the DAO's position that the responsive records cannot be provided at this time. Conclusion Accordingly, I will consider this appeal closed with the proviso that the City provide Mr. Ramos with a response to the request, provided 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 pre@sec.state.ma.us.

Audrey Coulter SPR16/1142 Page 3 December 16, 2016 rnms Sup rvisor of Records cc: Nestor Ramos