Sophia Brown v. Office of the Attorney General (SPR 20201187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 29, 2020 SPR20/1187 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Sophia S. Brown appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on June 18, 2020, Ms. Brown requested a copy of the following records: “consumer and civil rights complaints [the AGO has] received related to illegal evictions during the current public health crisis, as well as any related data dictionary or other content guide.” Unsatisfied with the AGO's response, Ms. Brown petitioned this office and SPR20/1187 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, § l0A(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 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). 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

Lorraine A.G. Tarrow, Esq. SPR20/1187 Page 2 July 29, 2020 The AGO’s July 9th response In its July 9th response, the AGO produced eighty-eight pages of records that may be responsive to Ms. Brown’s request. The AGO stated that the “records have been redacted in accordance with G. L. c. 4, § 7(26)(c) and (f). 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. In its July 9th response, the AGO asserts that, “[it has] redacted identifying information of complainants and third parties and withheld a number of complaints that may be responsive to [the] request because they are ‘open’ i.e. still under review by the AGO and are therefore exempt under G. L. c. 4, § 7(26)(f), as their disclosure would prejudice law enforcement by prematurely releasing them prior to their disposition.” As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Any information 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption

Lorraine A.G. Tarrow, Esq. SPR20/1187 Page 3 July 29, 2020 (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Pursuant to case law, redactions are appropriate where they serve to preserve the anonymity of voluntary witnesses. See Antell v. Attorney Gen., 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18. Therefore, I find that the AGO has met its burden to redact the identifying information of any victims, complainants and voluntary witnesses pursuant to Exemption (f). Based upon a conversation between a Public Records Division staff attorney and an AGO representative, it is my understanding that the AGO intends on providing a subsequent response to Ms. Brown to address her concerns with regard to the complaints that are being withheld because they remain under review by the AGO. Ms. Brown may appeal the substantive nature of the AGO's response within ninety days. See 950 C.M.R. 32.08(1). Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sophia S. Brown