Stanley Mazurczyk v. Chelmsford, Town of - Town Manager (SPR 20200210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 20, 2020 SPR20/0210 Paul Cohen Town Manager Town of Chelmsford 50 Billerica Road Chelmsford, MA O1 824 Dear Mr. Cohen: I have received the petitioh of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mazurczyk requested copies of wireless device subscriptions, as well as regulations regarding usage and obligations on how confidential information is kept on these devices. The Town has produced the responsive records, leaving only redactions made to the phone numbers listed on the records subject to this appeal. Previous appeal This request was the subject of previous appeals. See SPR 20/0023 Determination of the Supervisor of Records (January 16, 2020); SPR19/2437 Determination of the Supervisor of Records (December 19, 2019). I closed SPR 20/0023 with the understanding that the Town intended to provide a supplemental response to Mr. Mazurczyk. The Town provided this supplemental response on January 31, 2020, explaining that it redacted the phone numbers pursuant to Exemptions (b) and (f) of the Public Records Law. Unsatisfied this response, Mr. Mazurczyk petitioned this office and this appeal, SPR20/02 l 0, was opened as a result. Current Appeal In its December 30th response the Town stated it "produced copies of all the most recent cell phone invoices for cell phones the Town provides to ... Town officers and employees. The invoices were produced in full, including the officer or employee's name, with only the cell phone number itselfredacted." The Town now claims that the cell phone numbers are exempt from disclosure under Exemptions (b) and (f). G. L. c. 4 § 7(26)(b), (f). 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

Paul Cohen SPR20/0210 Page 2 February 20, 2020 Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). 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 alert suspects to the activities of investigative officials. Confidential

Paul Cohen SPR20/0210 Page 3 February 20, 2020 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. The Town 's Responses In its December 30th response, the Town identifies the redactions made to the town issued cell phone numbers of "numerous department heads and employees with duties and responsibilities that are vitally imp01iant in emergencies or other situations where communications between Town depaiiments is imperative, including Police, Fire and Emergency Management personnel, [school] officials; Health Department and Senior Center administration ... and Town Administration personnel. .. ," among others. The Town explains that it "issues these officials cell phones as a method of ensuring the smooth and efficient operation of Town government, and not as a method by which any members of the public may contact said officials .... " The Town additionally asserts that "[t]he redacted cell phone numbers are related solely to the internal practices of Town government and communications between Town employees and officials." In its January 31st response, the Town provides additional information regarding the phone numbers of Town police officers, expressing concern that release these phone numbers "will have a significant and detrimental impact upon public safety and the operation of the Town's police depaiiment." The Town also argues that "where the use of cell phones is necessary for undercover and other investigations and where the confidentiality of the phone numbers themselves is critical to the outcome of those investigations, the disclosure of these cell phone numbers would be a clear detriment to effective law enforcement .... " Where redactions have been made to the phone numbers of Town personnel whose duties involve law enforcement and emergency response, I find that the Town has met its burden to redact these records under Exemption (b). Where redactions have been made to the phone numbers of employees who do not have these duties, it is unclear how disclosure would prevent the "proper performance of necessary governmental functions," as required by Exemption (b ). See G. L. c. 66, § 7(26)(b). Accordingly, these numbers may not be redacted. Given that the Town has met its burden to redact the phone numbers of law enforcement personnel under Exemption (b), I decline to opine on the Town's Exemption (f) claim. Conclusion Accordingly, the Town is ordered to review the records, redact where necessary, and provide Mr. Mazurczyk with a response to his request in a manner consistent with the Public

Paul Cohen SPR20/0210 Page 4 February 20, 2020 Records Law and its Access 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stanley Mazurczyk Brian W. Riley, Esq.