Catherine Christina v. Division of Occupational Licensure (SPR 20200807)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29, 2020 SPR20/0807 Jean McCarthy Records Access Officer Division of Professional Licensure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Catherine Christina appealing the response of the Division of Professional Licensure Office of Public Safety and Inspections (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 28, 2020, Ms. Christina requested: “the audio/tape recordings of the hearings that took place before the Massachusetts Board of Building Regulation and Standards in the matter of Signature Building Systems of PA, LLC, (MC# 0175), Case Record 117-00193, on both days of October 29th and 30th, 2019, before hearing officer Christopher Popov, Office of Hearings…” On March 9, 2020, the Division denied Ms. Christina’s request in its entirety pursuant to Exemption (f) of the Public Records Law. As a result, Ms. Christina petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 10A(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, § 10(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 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 SPR20/0807 Page 2 May 29, 2020 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). Exemption (f) 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 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, 378 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. While the Division claims the responsive audio recording pertains to an open case, the Division did not demonstrate how disclosure of the responsive recording from a 2-day hearing in October 2019 “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). Moreover, in Ms. Christina’s petition, she asserts that the hearing was public and that the recording was distributed to other individuals who requested a copy. I find that the Division has not met its burden of specificity in denying the request under Exemption (f). Conclusion Accordingly, the Division is ordered to provide Ms. Christina with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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.

Jean McCarthy SPR20/0807 Page 3 May 29, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Christina