Kevin Rothstein v. Department of Public Health (SPR 20180488)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 26, 2018 SPRlS/488 Helen Rush-Lloyd Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Kevin Rothstein of WCVB-TVappealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 26, 2018, Mr. Rothstein requested the following records: • "All records regarding destruction of medical marijuana because of pesticide contamination or suspected pesticide contamination, or where pesticide contamination was part of the reason for destruction • All other notifications, reports, or other documents where a Registered Marijuana Dispensary reported test results indicating that contaminant levels for pesticides were above acceptable limits[.]" The Department provided a response on April 4, 2018, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department's response, Mr. Rothstein petitioned this office and this appeal, SPR18/488, 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). 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. 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

Helen Rush-Lloyd SPR18/488 Page 2 April 25, 2018 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. The Department's April l 11 response In its April 4, 2018 response, the Department indicated that "[t]o the extent that DPH possesses records responsive to [Mr. Rothstein's] request, such records are withheld from production because they are subject to an exemption pursuant to G.L. c. 4, § 7, ,i 26 (f), the investigatory exemption ..." Exemption (I) 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, 3 71 Mass 5 9, 62 (197 6). 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 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. Under its Exemption (f) claim, the Department indicated that "[t]here are currently open investigations being conducted by the Medical Use of Marijuana Program, and therefore the documents which may be responsive to your request are exempt under [Exemption (f)] because the material could compromise the investigative efforts if disclosed."

Helen Rush-Lloyd SPR18/488 Page 3 April 25, 2018 Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(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 Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4}. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. Further, the Department's initial response did not contain the specificity required in a denial of access to public records. While the Department 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 of the investigation. Further, the Department 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). Additionally, it is unclear why the Department is withholding the records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Rothstein with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Helen Rush-Lloyd SPR18/488 Page 4 April 25, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein