Mike Beaudet v. Division of Occupational Licensure (SPR 20171371)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 6, 2017 SPR17/1371 Jordan Maynard External Affairs Manager Division of Professional Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Jordan Maynard: I have received the petition of Mike Beaudet appealing the response of the Division of Professional Licensure (DPL) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Beaudet requested emails between identified individuals within a certain timeframe. Jordan Maynard, External Affairs Manager, denied his request, claiming that the responsive record exempt from disclosure pursuant to 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, § 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). 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Jordan Maynard SPR17/1371 Page2 October 6, 2017 Exemption (f) In the DPL's response, it indicates its intention to withhold the responsive records and its "determination that [Mr. Beaudet's] request seeks documents relating to an open investigatory matter" and cites Exemption (f) of the Public Records Law. The DPL further indicates that "[o]nce the pending case is closed, records may be available to the public, subject to applicable exemptions under the public records law, unless protected by statute or otherwise privileged. If these documents are available by September 14, 2017, the time in which [the DPL has] to respond, or seek an extension to [Mr. Beaudet's] request, [the DPL] will notify [Mr. Beaudet]. Otherwise, this correspondence constitutes [the DPL's] response to [Mr. Beaudet's] August 30, 2017 public records request, and the documents must be requested when the case closes." 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). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 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. While the DPL claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part ofthe investigation. Further, the DPL did not demonstrate how disclosure of the responsive 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). Consequently, the DPL did not meet its burden in withholding the requested records. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DPL intends to provide Mr. Beaudet with a supplemental

Jordan Maynard SPR17/1371 Page 3 October 6, 2017 response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DPL provides said response 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. Mr. Beaudet may appeal the substantive nature of the DPL's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mike Beaudet