Jim Haddadin v. Department of Early Education and Care (SPR 20200335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 5, 2020 SPR20/0335 Jenna R. Buonopane Paralegal/Secondary Records Access Officer Department of Early Education and Care 51 Sleeper Street Boston, MA 02210 Dear Ms. Buonopane: I have received the petition of Jim Haddadin of NBCJO 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." Previous appeal This request was the subject of a previous appeal. See SPR20/0099 Determination of the Supervisor of Records (January 31, 2020). In my January 31st determination I indicated that whereas EEC intends to provide a supplemental response that includes certain responsive records, I considered the appeal closed with the understanding that EEC provides said response in a manner consistent with the order, the Public Records Law, and its Regulations within 10 business days. EEC responded on February 19, 2020. Mr. Haddadin appealed and SPR20/0335 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). 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 SPR20/0355 Page 2 March 5, 2020 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. Current Appeal EEC initially 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). In its February 19th response EEC provided a responsive letter with portions redacted under Exemptions (a), (c), and (f). EEC also withheld six records in their entirety under Exemption (f). Redacted portions of the letter In its February 19th response Attorney Felicia Sullivan, General Counsel of EEC, explains "EEC is producing a portion of the responsive records to you - specifically a letter that details the amount of the loss that EEC reported to the State Auditor's Office and how that amount was calculated." Attorney Sullivan cited the statutory language of Exemptions (a), (c), and (f) in support of these redactions. In his appeal petition Mr. Haddadin asserts" ... EEC failed to satisfy the most basic requirements of the public records law in attempting to withhold this information from the public. It failed to state with specificity how the investigatory or personnel exemptions apply to the records at issue, or to identify any statute that bars the release of these records pursuant to the statutory exemption. Further, it failed to describe which portions of the letter were redacted pursuant to which exemption." Records withheld in their entirety EEC further indicates it is withholding the following records under Exemption (f): • Internal compliance monitoring plant • EEC on-site monitoring review reports • Internal code of conduct; Anti-fraud and code of ethics verifications • Letters re: investigation-related personnel action • Emails from EEC to program agencies • Travel reports and timesheets. Exemption (/) Exemption (f) permits the withholding of:

Jenna R. Buonopane SPR20/0355 Page 3 March 5, 2020 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 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. In its January 14th response 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)." EEC asserted that "[t]his matter is currently under investigation by the Boston Police Department and the Suffolk District Attorney's Office. It is believed that release of this information would jeopardize the integrity [o f an] investigation." In its February 19th response Attorney Sullivan indicates that with respect to each withheld record, "[t]he documents have been provided to law enforcement pursuant to an active investigation with the Boston Police Department and the Suffolk District Attorney's Office. EEC confirmed that the investigation is still active and ongoing." She also provides information regarding how the record relates to the investigation. In his appeal petition Mr. Haddadin indicates, in part, that EEC" ... failed to satisfy the requirements of the public records law and its access regulations because it did not state with specificity how the release of these materials would jeopardize an investigation, reveal confidential investigative techniques or compromise the identity of witnesses." He also notes "[t]o the extent that any portion of the requested records can be withheld, redaction is an appropriate remedy."

Jenna R. Buonopane SPR20/0355 Page 4 March 5, 2020 Supplemental response Subsequent to the opening of this appeal, EEC provided a supplemental response on March 5, 2020. With respect to the redacted portions of the responsive letter, Attorney Sullivan indicates "[o]n page 1, EEC redacted the name of the employee under the privacy exemption. The paragraph on the bottom of the page also has redacted language of employment action that was raised for privacy reasons. On page 2, EEC again redacted the employee's name under the privacy exemption. On pages 3-7, EEC redacted the date and the location under the investigatory exemption;" With regard to the withheld records, Attorney Sullivan asserts "EEC must withhold the documents in their entirety because they have been turned over to law enforcement and now relate to a larger active and ongoing law enforcement investigation by the Suffolk District Attorney's Office and Boston Police Department. The investigation may result in grand jury proceedings, and if EEC turns the documents over it would taint the prosecution or potentially alert the suspect to the activities ...." Conclusion In light of EEC's March 5111 supplemental response that provides additional information regarding the nature of the redactions and the ongoing of the investigation, I will consider this appeal closed. Mr. Haddadin may appeal the substantive nature of EEC's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin