Kathy Curran v. Massachusetts State Police (SPR 20171017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 8, 2017 SPR17/1017 Michael B. Halpin, Esq. Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Kathy Curran, an Investigative Reporter for WCVB Channel 5 Boston, appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Curran requested a copy of: 1. Records or data reflecting toll transponder data from state vehicles driven by identified Department employees on specific dates, and 2. Records or data reflecting ignition on and off times from state vehicles driven by identified Department employees on the specific dates. Department responses-June 28th and June 29th The Department provided Ms. Curran with a response on June 28th claiming that the toll transponder data is exempt pursuant to G. L. c. 6C, § 13(b) as it operates through Exemption (a) of the Public Records Law. Additionally, the Department indicated the records reflecting ignition on and off times are being withheld in their entirety at this time due to an ongoing and active Department inquiry pursuant to Exemption (f) ofthe Public Records Law. You explained that once the Department's inquiry is complete, records responsive Request Number 2 will be made publically available, subject to any applicable exemptions. After receiving your response, Ms. Curran sent a June 29th email reaffirming that she is asking for records or data concerning public employees.driving state vehicles funded by taxpayer money and that she had received this type of data from other public agencies. 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

Michael B. Halpin, Esq. SPR17/1017 Page 2 August 8, 2017 You responded to Ms. Curran's further inquiry in a June 29th email explaining that the statute cited expressly renders all account data "confidential" and declares, without exception and without regard to account holder status, that such information shall not be a public record. Regarding Ms. Curran's suggestion that the Department possesses GPS data, you informed her that the Department does not possess GPS data responsive to her Request Number 2; however, may potentially possess radio affiliation data that would be responsive. Further, you informed Ms. Curran that both her requests relate to and concern an ongoing, active Department Internal Affairs Unit investigation and pending personnel matter, which is not specific to any individual, or the auditing, investigating and reviewing of relevant records, policies, practices, customs and/or activities specific to employee time, attendance and compensation. Therefore, the Department is withholding all the records responsive to the requests pursuant to Exemption (f) of the Public Records Law. Ms. Curran appealed the Department's denial. While it appears that Ms. Curran's Legal Counsel Diego Ibarguen did not copy the Department on its petition for an appeal, a Public Records Division attorney provided the Department with a copy of the appeal file to assist with responding to this appeal. In petitioning the Supervisor, "the requester shall provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). 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, § 10A(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). 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, § 1O (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. Exemption (a) In your June 28th and June 29th responses, you state that the Department is denying Ms. Curran's request for the toll transponder data from the Department's state-issued vehicles under G. L. c. 6C, § 13(b) as it operates through Exemption (a) of the Public Records Law.

Michael B. Halpin, Esq. SPR17/1017 Page 3 August 8, 2017 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). 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 a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute that the Department has claimed to withhold the toll transponder data is G. L. c. 6C, § 13(b). This Department of Transportation (DOT) statute states: (b) The department shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to account holders who participate in its electronic toll collection system. Such information shall not be a public record under clause Twenty-sixth of section 7 of chapter 4 or section 10 of chapter 66 and shall be used for enforcement purposes only with respect to toll collection regulations. An account holder may, upon written request to the department, have access to all information pertaining solely to the account holder. G. L. c. 6C, § 13(b) . Whik the Department has claimed that the vehicle transponder information concerning the identified Department employees is not a public record, as restricted by Section 13(b), the Department has not specifically explained why the records in the hands of the Department regarding state employee vehicles, not records in the hands of the DOT, would be exempt from disclosure. The vehicles were driven relative to the employees' official duties as a public employee, and public employees have a reduced expectation of privacy.

Michael B. Halpin, Esq. SPR17/1017 Page 4 August 8, 2017 Exemption (f) The Department is withholding records responsive to Ms. Curran's request for the data or records reflecting ignition on and off times from the Department's vehicles relative to the employees identified by Ms. Curran in her request pursuant to Exemption (f). Exemption (f) 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. 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 Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." Id., at 289-90. The Department's June 28th and June 29th responses did not contain the specificity required in a denial of access to public records. After receiving your initial response, Ms. Curran asked whether the Department's inquiry or investigation pertains to every employee that she identified in her request. You informed Ms. Curran in a June 29th email, stating, "[a]t this time, material responsive to your two requests relate to and/or concern an ongoing, active Department Internal Affairs investigation and pending personnel matter. .. " The Department noted that its inquiry is not specific to any individual; instead it involves the Department as a whole. As part of the investigation, the Department is reviewing relevant records concerning its personnel policies, practices, customs, and/or activities specific to employee time, attendance and compensation. Therefore, the Department has withheld the responsive records in their entirety pursuant to Exemption (f). The Department has not explained whether it has the records responsive to Ms. Curran's request for the data concerning the specifically identified Department employees listed in her request, or in what stage of the investigation the Department has reached at the present time. Nor has the Department demonstrated how disclosure of the requested data or records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f).

Michael B. Halpin, Esq. SPR17/1017 Page 5 August 8, 2017 I find that the Department has not met its burden of specifically detailing how Exemption (f) allows the Department to withhold the data and/or records in their entirety, and why the Department cannot provide Ms. Curran with a portion of the information. A Public Records Division attorney contacted the Department via telephone and email regarding this appeal and the Department indicated it will provide a supplemental response to Ms. Curran's request and the exemption claims. Conclusion Accordingly, whereas the Department will provide a supplemental response to Ms. Curran regarding her requests and the Department's Exemption (a) and{±) claims, I will consider this appeal closed with the proviso that the response is provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Ms. Curran may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kathy Curran