Edwin Dorsey v. Office of the Attorney General (SPR 20190049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 22, 2019 SPR19/0049 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Edwin Dorsey appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dorsey requested a copy of "any demand or request for payment sent from the [AGO] to Care.com between January 1, 2017 and March 31, 2017." Prior appeal The responsive record was the subject of a prior appeal. See SPRl 8/1856 Determination of the Supervisor of Records (Supervisor) (December 12, 2018). In a November 28, 2018 response from Mychil Snape, a Records Access Officer in the AGO's Consumer Protection Division, Mr. Dorsey was informed that the AGO has one (1) record responsive to his request; however, the AGO withheld the record pursuant to Exemption (d) of the Public Records Law. Mr. Dorsey appealed the AGO's November 28th response, and the prior appeal, SPR18/1856, was opened. With my December 12th determination, I closed SPR18/1856 with the AGO's indication that a supplemental response would be provided to Mr. Dorsey. In response to my December 12th determination, on January 4, 2019, the AGO provided Mr. Dorsey with a supplemental response and a copy of the record which reveals the payment amount responsive to his request for "any demand or request for payment." The AGO redacted the balance of the record entitled, "Confidential Settlement Communication" under Exemptions (d) and (f) of the Public Records Law. Mr. Dorsey petitioned the Supervisor and the current appeal, SPR19/0049, was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Lorraine A.G. Tarrow, Esq. SPR19/0049 Page 2 January 22, 2019 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, § 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 ... "); 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). 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, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold 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 that such disclosure would not be in the public interest." See id. at 289-290. In the January 4th response, the AGO explains that in addition to withholding the redacted portion of the record under Exemption ( d), the AGO also withholding the redacted portion under Exemption (f). During a conversation with a Public Records Division staff attorney and in its January 4th response, the AGO asserted," ... settlement negotiations are considered to be investigative tools that are essential to the resolution of a matter without litigation." Your response states, "[a]s such the requested record ... reveals investigative procedures that are [necessary to keep] out of the public view, the disclosure of which would compromise effective law enforcement such that disclosure would not be in the public interest. Both current and future law enforcement efforts concerning any matter under investigation would be seriously

Lorraine A.G. Tarrow, Esq. SPR19/0049 Page 3 January 22, 2019 compromised by the disclosure of such information as it would dissuade targets from freely providing information concerning their business practices if it would open them up to potential litigation or competitive harm." It was also explained to this office that investigations, and negotiations toward settlement in lieu of continuing with litigation, regarding other investigation targets, would be jeopardized, if the AGO's investigative approach and/or strategy in both investigations and negotiations toward settlement were disclosed. The AGO posits that it would give an unfair advantage to other targets, if the deliberations and negotiations in the matter with Care.com, and prevent individuals and entities from voluntarily providing information to the AGO sought during an investigation and settlement process. Based on the AGO's January 4th response and discussion with this office, I find that the AGO has met its burden of specificity in withholding the redacted portion of the record provided to Mr. Dorsey under Exemption (f). In its January 4th response, the AGO informed Mr. Dorsey and this office, "the above notwithstanding, because Care.com has released information to the public concerning the initial settlement demand amount of "approximately $1.5 million," we consider the portion of the settlement negotiation concerning the payment only to be responsive to your request for "any demand or request for payment," and only the text reflecting what has already been released by Care.com to be subject to disclosure." Conclusion Accordingly, I find that the AGO has met its burden of specificity in withholding the redacted portions of its settlement communication with Care.com under Exemption (f). Consequently, I will consider this administrative appeal closed. Sincerely, ~y~ Supervisor of Records cc: Edwin Dorsey