Chris Infami v. Office of the Attorney General (SPR 20190432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2019 SPR19/0432 Lorraine A. G. Tarrow, Esq. Assistant Attorney General/Records Access Officer Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of C. Infami 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, on February 22, 2019, C. Infami requested "all complaints pertaining to the Merrimack Valley Women's Health Services LLC." The AGO responded on February 13, 2019, providing responsive records in redacted form. The AGO claims redactions were made pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the AGO's response, C. Infami petitioned this office and this appeal, SPR19/0432, was opened as a result. While this appeal was pending, the AGO provided a supplemental response dated March 6, 2019. 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. 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. SPR19/0432 Page 2 March 6, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The AGO's February 13th response In its February 13, 2019 response, the AGO indicated that "[i]dentifying information pertaining to the complainant has been redacted from the records in accordance with G.L. c. 4, § 7, cl. 26(c ), insofar as the disclosure of such information may constitute an unwarranted invasion of personal privacy. See also 940 CMR 11.04(1)." The AGO stated that it withheld an additional record responsive to C. Infami's request also under Exemption (c). The AGO explains that "[t]his record consists of the first page of the wage complaint that contains only the complainant's name and other identifying and personal information, and which would be rendered meaningless by appropriate redaction ...." Exemption (c) Exemption (c ) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family

Lorraine A. G. Tarrow, Esq. SPR19/0432 Page 3 March 6, 2019 disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PET A, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The AGO's March 6th supplemental response In an email correspondence dated March 6, 2019, the AGO states that in addition to its Exemption (c) claim, it" ... assert[s] that G.L. c. 4, § 7, cl. 26(f) applies to withhold the names and identifying information of these, as well as other kinds of complainants, as such disclosure would cause a 'chilling effect' on complainants to speak candidly about matters under investigation." The AGO posits that "[c]omplainants, like witnesses, provide [the AGO] with sources of information that fuel [its] current and future investigations, on their behalf as well as those similarly situated, and they should be able to do so without fear of intimidation or invasion of privacy. Therefore, the disclosure of this information would so prejudice the possibility of effective law enforcement that it would not be in the collective public interest to do so." Exemption (f) Exemption (f), the investigatory exemption, 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 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.

Lorraine A. G. Tarrow, Esq. SPR19/0432 Page 4 March 6, 2019 As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Consequently, I find the AGO has met its burden to explain how the records were redacted to omit information that could reveal the identity of the complainant. As such, I find the AGO acted properly in withholding the complainant's name and identifying information under Exemption (f) of the Public Records Law. Therefore, I decline to opine on the AGO's Exemption ( c) claim supporting non-disclosure. Conclusion Accordingly, I will consider this administrative appeal closed. If C. Infami is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: C. Infami