Jim Haddadin v. Department of Early Education and Care (SPR 20200099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2020 SPR20/0099 Jenna R. Buonopane Paralegal/Secondary Records Access Officer Depaiiment of Early Education and Care 51 Sleeper Street Boston, MA 02210 Dear Ms. Buonopane: I have received the petition of Jim Haddadin of NBC] 0 Boston appealing the response of the Department of Early Education and Care (Department/EEC) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Haddadin requested "copies of all written records that pertain to the matter that prompted the [D]epartment to report the loss, theft or destruction of property to the Office of the State Auditor on Feb. 14, 2019." EEC responded on January 14, 2020 by denying access to responsive records under 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, § 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. 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

Jenna R. Buonopane SPR20/0099 Page2 January 31, 2020 Appeal 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 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 ale1i 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. EEC indicated it is "withholding all responsive materials due to the fact that it involves a matter that is currently under a criminal investigation. Pursuant to the Investigatory exemption, investigatory materials may be withheld if they are 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, pursuant to M.G.L. c. 4, §7(26)(f)." You assert that "[t]his matter is currently under investigation by the Boston Police Department and the Suffolk District Attorney's Offic.e. It is believed that release of this information would jeopardize the integrity [o f an] investigation." Subsequent to the opening of this appeal, this office was informed that EEC intends to provide a supplemental response to Mr. Haddadin that includes certain responsive records. In the event that EEC intends to withhold any responsive records, please note that under G. L. c. 66, § 1O (b )(iv), a records custodian is required to provide a response that identifies "any records, categories of records or pmiions 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."

Jenna R. Buonopane SPR20/0099 Page 3 January 31, 2020 Conclusion Whereas EEC intends to provide a supplemental response that includes certain responsive records, I will consider this appeal closed with the understanding that EEC provides said response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Haddadin may appeal the substantive nature of EEC's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~UIT~ Supervisor of Records cc: Jim Haddadin