Wesley Hardy v. Easthampton, City of - Office of the Mayor (SPR 20180997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20,201 8 SPRl81997 Nicole LaChapelle City of Easthampton Office of the Mayor - 50 Payson Avenue Easthamption, MA 0 1027 Dear Mayor LaChapelle: I have received the petition of Wesley Hardy appealing the response of the City of Easthampton (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 20,2018 , Mr. Hardy requested ". . . all emails containing: references to, discussions about, or information concerning, the SPIRT [sic] program. Since January 1,2018 ." The City provided a response on July 5,2018 , which included portions of the responsive records. The City withheld portions of the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, 5 7(26)(f). Unsatisfied with the City's response, Mr. Hardy petitioned this office and this appeal, SPR181997, 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). 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 lO(b)(iv); 950 C.M.R. 32.06(3); see 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). 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, 5 lO(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 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Nicole LaChapelle Page 2 July 20,2018 The City's July 5thr esponse In its July 5,2018 response, the City indicates that it provided records responsive to Mr. Hardy's request. The City further indicates that "[tlhere may be additional records responsive to [Mr. Hardy's] request that are being withheld pursuant to [Exemption (f)] . . ." The City claims Exemption (f) ". . . applies as the documents being withheld contain sensitive information that was compiled out of the public view by investigatory officials, the disclosure of which could prejudice law enforcement and would not be in the public interest." 0 Exemption The City claimed it withheld portions of the responsive records 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 prejudice the 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. 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 of Boston, 378 Mass. 28 1,290 n. 18 (19 79). 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." Reinstein, 378 Mass. at 289-90. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, $ 10(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 51 1.

Nicole LaChapelle Page 3 July 20,2018 Based on the City's response, it is unclear what type of records the City is withholding 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 C.M.R. 32.06(3)(~)(4)H. ere, the City withheld records without identifying the records. Therefore, the City must identify the type of record(s) it has in its possession. Further, the City's response does not contain the specificity required in a denial of access to public records. While the City claims the responsive records "contain sensitive information that was compiled out of the public view by investigatory officials, the disclosure of which could prejudice law enforcement and would not be in the public interest," the City does not explain whether the records are part of or the subject of an ongoing investigation. Neither does the City explain how disclosure of the contents 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). Further, the City does not demonstrate with specificity how Exemption (f) applies to withhold the records in their entirety from disclosure. See Reinstein v. Police Cornm'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, 9 lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the City did not meet its burden to explain why Exemption (f) applies to allow for the withholding of the records in their entirety, the requested records may not be withheld. Accordingly, the City is ordered is to review the records, redact where necessary, and provide Mr. Hardy 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 City may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wesley Hardy