Joe Difazio v. Cohasset, Town of - Town Manager (SPR 20191396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11•isor of Records July 30, 2019 SPR19/1396 Christopher Senior Town Manager Town of Cohasset 41 Highland A venue Cohasset, MA 02025 Dear Mr. Senior: I have received the petition of Joseph DiFazio of The Patriot Ledger appealing the response of the Town of Cohasset (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 5, 2019, Mr. DiFazio requested "[a]ny records, including electronic communication, relating to any Title IX investigations undertaken by Cohasset's insurance carrier on the town's public school system related to [an identified former school employee] and/or the school's response to allegations against him and [t]he final report of any such Title IX investigations." Previous appeal; reconsideration, in camera inspection, time petition The requested records were the subject of a previous appeal, reconsideration, in camera inspection and subsequent time petition. See SPR19/0507 Determinations of the Supervisor of Records (March 19, 2019; April 26, 2019; May 21, 2019) (May 2181 determination) and SPR19/1071 Determination of the Supervisor of Records (June 4, 2019). In my June 4th determination, I found that in light of the need to segregate and redact the records and capacity of the Town in fulfilling the request, the Town had established good cause to permit an extension of time of 25 business days. Following the June 4th determination, the Town provided a response dated July 3, 2019, which included responsive records in redacted form. Unsatisfied with the Town's response, Mr. Difazio petitioned this office and this appeal, SPR19/1396, 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 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

Christopher Senior SPR19/1402 Page 2 July 30, 2019 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. 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. Tile Town's July 3rd response In its July 3rd response, the Town provided responsive records in redacted form. The Town claims its redactions were made pursuant to Exemptions (c) and (f) of the Public Records Law, "to protect the privacy and identity of students and voluntary witnesses, informants or complainants." The Town also redacted portions under Exemption (d), as they constitute "attorney opinion work product" as delineated in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). Exemption (d ) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application fa limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Christopher Senior SPR19/1402 Page 3 July 30, 2019 In my May 21st determination, I found the Town had established how the withheld report was prepared in anticipation of litigation or for trial. As such, I found that portions of the report may be withheld as "opinion" work product. See May 21st determination. Based on the Town's provision of the investigative report in redacted form, I find the Town has met its burden to withhold portions of the report that constitute "opinion" work product as delineated in DaRosa, as it operates through Exemption (d ). 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. ~' § 7(26)(£). A custodian of records generally must demonstrate a prejudice to investigative effmis 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 withhelcl indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Boug as v. Chief of Police of Lexington, 3 71 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, 3 78 Mass. at 290 n.18. 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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 Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. In its April 211 d response the Town asse1ied that the report contains witness statements whose disclosure would "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required under Exemption (f). The Town

Christopher Senior SPR19/1402 Page4 July 30, 2019 also indicated in its May 211 d response that" ... it is a small community and the incident in question has generated a large amount of publicity and public discussion. Any witnesses interviewed by the investigator in preparing the Title IX investigative report would be known to the requester and the report could not possibly be redacted in a manner to avoid their identification." In my May 21st determination, I found the Town may withhold information whose disclosure would risk directly or indirectly identifying the voluntary witnesses involved. See May 21st determination. Where the Town has provided the investigative report in redacted form, I find the Town has met its burden to justify its redactions under Exemption (f) of the Public Records Law. As indicated above, tlie inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career, such as co workers. See Globe Newspaper Co.; see also Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Consequently, I decline to opine on the Town's Exemption (c) claim supporting non disclosure of portions of the investigative report. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Difazio 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: Joe Difazio