Ryan Kath v. Department of Conservation and Recreation (SPR 20170232)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 7, 2017 SPR17/232 Bridget Connelly, Esq. Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Ryan Kath of WBZ-TV WSBK Boston appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Kath requested a list of all the web sites and/or domains accessed on the public computer of a specifically-named DCR employee from January 1 through January 27, 2017. Mr. Kath asks that the list be provided electronically. The Department is withholding the records pursuant to Exemptions (e) and (f) of the Public Records Law. Mr. Kath appealed. Appeal to the Supervisor You informed this office that the Department's Records Access Officer (RAO) did not receive a copy of Mr. Kath's petition to Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that a member of the Public Records Division staff provided you with a copy of the appeal file via email. Mr. Kath is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h) (January 1, 2017 Ed.). 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, § lOA(d); 950 C.M.R. 32.03(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). 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

Bridget Connelly, Esq. SPRl 7/232 Page 2 March 7, 2017 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, § lO(b)(iv), 950 C.M.R. 32.06(3); 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. The Department's February 14, 2017 email response indicates that the Department believes that the requested internet browser history of state employees is not considered a "public record." The Department bases this opinion on language in the statutory definition of "public record," as a document made or received by a government entity. Further, you explained that the browser history is unlike information systems used or maintained by the agency to actually create, receive or store records. I find that the Department has not met its burden of fully suppoI rting this argument. Exemption (e) Your February response states that without conceding that a browser history is a public record, the Department claims that the internet browser history is exempt under Exemption ( e) of the Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e) The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's

Bridget Connelly, Esq. SPR17/232 Page 3 March 7, 2017 memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e ) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. It is the Department's belief that computer internet browser history is personal in nature to the employee who is the user of a particular computer, and are records not maintained as part of the agency's files. You state in your response that one of the purposes of Exemption ( e) is to allow public employees a space to think privately, and that internet browser histories provide a map of an employees' thought process. The Department posits that distinguishing these records from files of the agency supports public employees being able to do their work well. Therefore, the Department has withheld the records pursuant to Exemption ( e ). I remind the Department that the records created on a governmental entity's computers by a government employee are not private to the employee. The purpose of the Public Records Law is to shine a light on the workings of the government, and public employees have a diminished right to privacy. The fact that a particular employee may be embarrassed by his or her internet browsing history while on the job has no bearing on the public nature of browser history held on that employee's government-owned computer. The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee. Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Company v. Clerk of the Third District Court of Bristol, 377 Mass. 404,417 (1979). Accordingly, I find that the Department has not met its statutory obligation of supporting the Exemption (e) claim to withhold the browser history. Exemption (I) In your February 14 response, you explained that the computer hard drive being used by the specifically-named employee on which any such generated data would exist is part of an on going internal investigation. You state that there is a possibility that disclosure of any materials on that hard drive at this time would prejudice the internal investigation, such that disclosure would not be in the public interest. Therefore, the Department is withholding the 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

Bridget Connelly, Esq. SPR17/232 Page 4 March 7, 2017 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. Exemption (f) 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. Chief of 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). I also find that the Department has not met its statutory obligation under Exemption (f) of specifically explaining how release of the requested browser information will prejudice the Department's investigation. Accordingly, whereas the Department has indicated that it will provide a more detailed response concerning its Exemption (e) and (f) claims to withhold the records, I will consider this appeal closed with the proviso that the Depaiiment provides Mr. Kath with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Mr. Kath may appeal the substantive nature of the supplemental response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Kath (via email)