Paul S. Hughes v. Department of Fire Services (SPR 20190894)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2019 SPR19/894 Glenn M. Rooney, Esq. Deputy General Counsel Department of Fire Services P.O. Box 1025 - 1 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." Previous appeal This request was the subject of a previous appeal. See SPRl 9/802 Determination of the Supervisor of Records (May 2, 2019). In my May 2nd determination I ordered the Department to provide Attorney Hughes a response provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Department responded on May 3, 2019. Attorney Hughes appealed and SPRl 9/894 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, § 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 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. SPR19/894 Page 2 May 17, 2019 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. Current appeal The Department initially responded on April 8, 2019 by denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). In my May 2nd determination I found that the Department or the Worcester County District Attorney's Office (DAO) must explain how the responsive records are part of an 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). The Department provides additional information about its Exemption (f) claim in its May 3rd response. 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)(f). A custodian ofrecords 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 ofP olice 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 indicated "[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."

Glenn M. Rooney, Esq. SPR19/894 Page 3 May 17, 2019 In its May 3rd response the Department asserts "[a]s you know, the general purpose of exemption (:t) 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 SuffolkDistrict, 408 Mass. 595,603 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976)." You also indicate that "[w]hereas witness information and testimony is essential to efficient and effective law enforcement, the investigative exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas at 62. To that end, the disclosure of witnesses statements or witness identities during the pendency of an open criminal matter is likely to deter potential witnesses from providing information to police in this and/or future investigations." With respect to Exemption (:t)'s applicability to the responsive records, you assert "[i]n this instance, given its nature, where the cause of the subject fire is (as of the date of this letter) undetermined and preliminary investigation has revealed inconsistencies, the Department and/or the District Attorney's Office may continue to pursue their investigations and interview or re interview existing or new witnesses. Therefore, the disclosure of certain information during the open criminal matter and before the statute of limitations has passed, could hinder the Department[] or the District Attorney's Office in their investigative efforts since, for example, additional witnesses or existing witnesses could be added to the investigation and the Department wants to ensure these parties are and/ or remain candid." In light of its April 3th and May 3rd responses, which demonstrate the ongoing nature of this investigation and address the negative impact disclosure of responsive records would have on the investigative efforts, such as witness cooperation, I find the Department has met its burden to withhold responsive investigatory materials in its possession under Exemption (:t). It should be noted that a change in the status of the investigation could impact the applicability of Exemption (:t). In his appeal petition Attorney Hughes indicates he represents the owner of the property at issue in the investigation. The Department indicates "[t]herefore, it may be preferable for Attorney Hughes to access the responsive records through the judicial process or directly through the Worcester County District Attorney's Office." See Commonwealth v. Wanis, 426 Mass. 639 (1998). Sincerely, ~~ Supervisor of Records cc: Paul Hughes, Esq. Assistant District Attorney Joseph Simmons