Paul S. Hughes v. Office of State Fire Marshal (SPR 20190802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2019 SPR19/802 Glenn M. Rooney, Esq. Deputy General Counsel Department of Fire Services P.O. Box 1025 - State Road Stow, MA 01775 Dear Attorney Rooney: I have received the petition of Paul Hughes, Esq. appealing the response of the Department of Fire Services (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Hughes referenced a certain incident and requested "the full report of the Office of the State Fire Marshal and a copy of all documents compiled pursuant to its investigation, including (1) All investigative reports; (2) All witness' statements; (3) All photographs and videotapes; ( 4) All forensic tests; and (5) All other documents compiled by the Office of the State Fire Marshal in the course of its investigation." The Department responded on ,.i~pril 8, 2019 by denying access to responsive records pnrsuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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, § 1 O(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

Glenn M. Rooney, Esq. SPR19/802 Page 2 May 2, 2019 Appeal Exemption (f) 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). 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. In its April 8th response the Department indicates "[p]lease be advised that, according to information recently provided to this office, this incident remains the subject of an on-going investigation by the Worcester County District Attorney's Office (Assistant District Attorney Joseph Simmons). It is the Department's position that that disclosure of investigatory materials related to an ongoing investigation prior to its conclusion could harm ongoing investigation efforts by the Department and/or other investigative entities." You assert that "[i]n light of the pending investigation, the report(s) you seek are not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f). As you may know, the general purpose of exemption (f) includes the avoidance of premature disclosure of the Commonwealth's case prior to trial and the prevention of disclosure of confidential techniques, procedures or sources of information. WBZ-TV 4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990); Bougas v. Chief of Police of Lexington, 371Mass. 59, 62 (1976)." While the Department references an ongoing investigation by the Worcester County District Attorney's Office (DAO), I find that the Department or the DAO must explain how the responsive records are part of the investigation and how disclosure "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).

Glenn M. Rooney, Esq. SPR19/802 Page 3 May 2, 2019 In his appeal petition Attorney Hughes indicates he represents the owner of the property at issue in the investigation. As such, Attorney Hughes may wish to consider another means of seeking to obtain any existing responsive records. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Conclusion Accordingly, the Department is ordered to provide Attorney Hughes a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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, ~a~ Supervisor of Records cc: Paul Hughes, Esq. Assistant District Attorney Joseph Simmons