George Brennan v. Tisbury, Town of (SPR 20171078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2017 SPR17/1078 John W. Grande Town Administrator Town of Tisbury 51 Spring Street Tisbury, MA 02568 Dear Mr. Grande: I have received the petition of George Brennan of the Martha's Vineyard Times appealing the response of Tisbury Town Administrator (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Brennan requested investigative reports, "any and all discipline reports," and "any and all executive session minutes from previous disciplinary hearings" regarding an identified police officer. Previous appeals This request was the subject of previous appeals. See SPR17/782 Determination of the Supervisor of Records (June 21, 2017); SPR17/927 Determination ofthe Supervisor of Records (July 21, 2017). I closed SPR17/927 with the proviso that the Town provide Mr. Brennan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a letter dated August 4, 2017, the Town provided a response in which it provided additional records with portions redacted. In an August 8, 2017 email you explain that redactions were made under Exemption (f) of the Public Records Law. G. L. c. 4, § 7 (26)(f). Mr. Brennan appealed and SPR171 1078 was opened as a result. 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

John W. Grande SPR17/1078 Page2 August 18,2017 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, § 1 O(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal It is my understanding that the Town provided an umedacted version of a 2017 investigation report. In his appeal petition Mr. Brennan objects to the withholding of witness names within a 2015 investigation report. The Town cites Exemption (f) in support of these redactions. 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)(±). 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). Redactions may be appropriate where they serve to preserve the anonymity ofvoluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); 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." See Reinstein, 378 Mass. at 289-90. In your August 8th email you indicate that "[u]nder exemption (f) ofG.L. c. 4, § 7, cl. 26, the names and identifying information of witnesses and complainants are exempt from public disclosure." You assert "disclosure of names ofvoluntary witnesses and complainants in the

John W. Grande SPR17/1078 Page 3 August 18, 2017 September 2015 investigation may deter other potential witnesses and citizens from providing information in the future, which would hinder future Town investigations. As such, the Town has redacted the names of those individuals from the investigation report previously produced." In his appeal petition Mr. Brennan notes that the "20 15 investigation cited in the [T]own's most recent response involves other police officers as witnesses. As your earlier ruling indicates, the [T]own has not established that releasing the names would be an unwarranted invasion of personal privacy." Based on the Town's response, it is unclear whether the redacted information pertains to other police officers, as Mr. Brennan suggests. The Town must clarify this matter and explain whether all of these individuals were voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). I understand a Public Records Division staff attorney contacted the Town attorney about this appeal and provided a copy of the file associated with this appeal. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Town provide Mr. Brennan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: George Brennan Brian M. Maser, Esq.