Cynthia B. Gardner v. Cotuit, Village of - Fire District (SPR 20180135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12,2018 SPR181135 Charles W. Eager Fire District and Board of Fire Commissioners P.O. Box 1475 64 High Street Cotuit, MA 02635 Dear Mr. Eager: I have received the petition of Cynthia Gardner appealing the response of the Town of Cotuit Fire District (Fire District) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gardner requested a copy of the Fire District's written response to the October 30, 2017 decision of the Audit, Oversight and Investigations Unit of the Office of the Inspector General. Previous appeal The responsive record was the subject of a previous appeal. See SPRl81028 Determination of the Supervisor of Records (January 9,2018). The previous appeal was opened due to the Fire District's lack of response to Ms. Gardner's request. I closed SPRl81028 when the Fire District informed this office that records were being compiled and a response was forthcoming. On January 19,2018 the Fire District denied Ms. Gardner's request pursuant to G. L. c. 12A, 5 13 and Exemption (f) of the Public Records Law. Unsatisfied with the January 19" denial, Ms. Gardner petitioned this office, and this appeal 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, 5 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, 5 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

Charles W. Eager Page 2 February 12,2018 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, 5 IO(d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). The Fire District's January 19" response In your January 19" response on behalf of the Fire District you state, "[alfter a thorough examination by the Board of Fire Commissioners and counsel. I was informed the District is exempt from disclosing any correspondence not in our possession between the Inspector General Office and the Board of Fire Commissioners under G. L. c. 12A, 5 13 (confidentiality of records) as well as under exemptions to the Massachusetts Public Records Law set forth at M. G. L. c. 4, sec.7(f) (investigatory material exemption)." In her emails to the Fire District, this office, and in a discussion with a Public Records Division staff attorney, Ms. Gardner specified that she was not requesting records in the hands of the Inspector General, but the written correspondence or response to the Inspector General from the Fire District. In an October 30,2017 written decision from Deputy Director Neil Cohen in the Audit, Oversight and Investigations Unit, Mr. Cohen formally requested that the Fire District respond in writing to the Inspector General by November 29,2017. The October 30" decision outlines the Fire District's actions to make a definitive determination regarding the appropriateness of questionable vacation accruals of the Fire District's firefighters. The response requested from the Fire District by the Inspector General is the specific correspondence that Ms. Gardner requested. In its January 19&r esponse, the Fire District has claimed that the correspondence sent to the Inspector General may be withheld under G. L. c. 12A, 5 13. The Fire District contends that a Massachusetts General Law exists that pertains to the confidentiality of records held by the Inspector General. The Fire District expressed that the statute allows the Fire District to withhold any correspondence in their custody that was sent to them by the Inspector General. This statute states: All records of the office ofthe inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. G. L. c. 12A, 5 13 (emphasis added). Given that the statute refers to the records in the custody of the Inspector General, I find that the correspondence in the possession of the Fire District drafted in response to the Inspector

Charles W. Eager Page 3 February 12,2018 General's October 30' decision detailing the corrective measures that the Fire District has or will put into place cannot be withheld pursuant to G. L. c. 12A, 5 13. Exemption (fj The Fire District also contends in its January response that the correspondence or other written record sent to the Inspector General may be withheld pursuant to Exemption (f) of the Public Records Law. 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 prejudicethe possibility of effective law enforcement that such disclosure would not be in the public interest 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. Bouaas v. Chief of Police of Lexington, 371 - - - Mass 59. 62 (1976). An investigative agencv is not reauired to demonstrate vreiudice to withhold a " 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 id. that such disclosure would not be in the public interest." at 289-90. The Fire District has claimed Exemption (f) to withhold the record; however, the Fire District has not demonstrated how the exemption applies to withhold the record, or whether the Fire District is in the midst of an investigation. I find that the Fire District has not met its burden in claiming Exemption (f) to withhold the responsive record. Specijici8 in responding to public records requests The Fire District is advised that pursuant to the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. G. L. c. 66, 5 lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. ."); see also Globe Newsvaver m, Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); 419 Mass. at 511.

Charles W. Eager Page 4 February 12,2018 Order Accordingly, the Fire District is hereby ordered to provide Ms. Gardner with a response to the request, 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. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Cynthia Gardner Richard Pisano