Edward P. Sinni, Jr. v. Division of Occupational Licensure (SPR 20191846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray · Supervisor o,/'Records September 23, 2019 SPR19/1846 Jean McCarthy Records Access Officer Division of Professional Li censure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Edward Sinni appealing the response of the Division of Professional Licensure - Office of Public Safety and Inspections (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sinni requested: " ... [A] copy of [the Office's] list of all complaints beginning with July 2, 2019 showing my complaint submission's entry to your list as item one and dated as such through your last entry complaint as of today, August 14, 2019 close of business. Please include for each complaint the dates of submission/reception to [A rchitectural Board], dates of initial active execution, dates of first notice, dates of second notice, Stipulated Order dates, hearing dates, dates of completion/board decisions as well as the details of the reasons for the complaints and any priority improvement given due to the perceived severity of each complaint. Please redact identifying information like name, address, phone numbers of complainants and defendants. Prior to my submission on July 2, 2019 I also would like the same redacted information as above for all submitted complaints fol' 90 days prior to July 2, 2019; that is from April 2, 2019 to July 2, 2019." The Office denied Mr. Sinni 's request, in its entirety, under Exemption (f) of the Public Records Law. As a result, Mr. Sinni petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition for an appeal, Mr. Sinni asserts that the Office could redact the identifying information and provide the list of complaints. In fact, he informed the Office in his August 181 h request that the Office could redact the name, address and phone number of each of the complainants and defendants. 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

Jean McCarthy SPR19/1846 Page 2 September 23, 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 fonn or characteristics, made or received by any officer or employey 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) (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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (I) In the Office's August 20, 2019 response, it states, "[t]he Office is withholding all · information related to these pending matters until such time as its investigations have concluded and its investigation reports are finalized." 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 of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an on-going 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. Bou gas 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 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

Jean McCarthy SPR19/1846 Page 3 September 23, 2019 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, 378 Mass. at 290 n.18. Any infomrntion 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. The Depaiiment claims the Incident 1301-778-0F report contains "confidential investigatory techniques," however, it does not explain how disclosure is deemed to be prejudicial to future law enforcement activities. Additionally, although the Department contends Exemption (f) permits withholding of identifying infonnation of voluntary witnesses, it is unclear why redaction is not possible to preserve witness anonymity. See Antell 52 Mass. App. Ct. at 248. While the Office asserts that the record cannot be released due to ongoing investigations, it did not explain how disclosure of the responsive records, even in redacted format "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). It is also unclear why the list of complaints cannot be redacted under Exemption (f) to preserve the complainants' or voluntary witnesses' anonymity. See Antell 52 Mass. App. Ct. at 248. Burden of specificity; duty to segregate The Office denied Mr. Sinni's request under Exemption (f) of the Public Records Law without providing the support the withholding of the responsive record(s). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive record(s), in their entirety, are exempt from disclosure. See Reinstein v. Police Coll1ll1'r of Boston, 378 Mass. 281, 289-90 (1979) (the statuto1y exemptions are narrowly construed and are not blanket in nature). The Office must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a).

Jean McCarthy SPR19/1846 Page4 September 23, 2019 Conclusion Accordingly, the Office is ordered to review, redact where necessary and provide Mr. Sinni with the record, 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, ~~ Rebecca S. Murray Supervisor of Records cc: Edward Sinni