Peter Cheney v. Plymouth Town Clerk (SPR 20201522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1522 Connor Anderson Archivist & Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Peter Cheney appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 13, 2020, Mr. Cheney requested “records involving the complaints made from locals about Little South and Great South Ponds” from “3/1 – present.” On August 28, 2020, the Town responded by providing the requested records redacted pursuant to Exemption (f). Unsatisfied with the Town’s response, Mr. Cheney petitioned this office, and SPR20/1522 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, § 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); 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, § 10(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

Connor Anderson SPR20/1522 Page 2 September 14, 2020 The Town’s August 28th response In its August 28th response, the Town cites Exemption (f) indicating “[t]he Town has redacted the identifying information of complainants in compliance with this exemption. These redactions have been made to the record only where necessary and no whole pages have been redacted.” 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 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 his appeal, Mr. Cheney states “When I spoke to the Town Manager she said I could see who made the complaints if I did FOIA request about it. However I just recieved [sic] it and all the names were redacted.” Based on the Town’s response, it has not met its burden of specificity in claiming Exemption (f) to redact the responsive records. Specifically, the Town has not demonstrated how disclosure of the names on the complaints “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to redact the records under Exemption (f). I understand an attorney of the Public Records Division contacted the Town to clarify this matter but received no response.

Connor Anderson SPR20/1522 Page 3 September 14, 2020 Conclusion Accordingly, I find that the Town is ordered to provide Mr. Cheney with a response in a manner consistent with this determination, the Public Records Law, and its Regulations within 10 business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Cheney