Wheeler Cowperthwaite v. Hingham, Town of - Town Administrator (SPR 20201713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2020 SPR20/1713 Tom Mayo Town Administrator Town of Hingham 210 Center Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Wheeler Cowperthwaite of The Patriot Ledger appealing the response of the Town of Hingham (Town) to a request for records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Cowperthwaite asked that the records be provided in electronic format and any fees waived for this request. Specifically, he requested: “[a]ll contracts and agreements, including scope of work documentation, for private investigations since Jan. 1, 2020, including but not limited to Discrimination and Harassment Solutions, LLC; and, All invoices for private investigations since Jan. 1, 2020, including but not limited to those from Discrimination and Harassment Solutions, LLC; All reports in possession of the [T]own from all private investigations commissioned since Jan. 1, 2020, including but not limited to those from Discrimination and Harassment Solutions, LLC.” In a September 15, 2020 response, the Town denied Mr. Cowperthwaite’s request in its entirety under Exemption (f) of the Public Records Law. As a result, Mr. Cowperthwaite 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 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

Tom Mayo SPR20/1713 Page 2 September 30, 2020 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). 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. Exemption (f) In its September 15, 2020 response, the Town claims, “…the present review by Discrimination and Harassment Solutions, LLC as under investigation until further notice and all documents relating to this matter are being withheld under [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 material 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 on-going 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. Although the Town’s September 15th response claims that all the requested records pertain to an ongoing investigation, it is unclear how contracts and agreements for investigative services, and invoices received by the Town from private investigators, including Discrimination and Harassment Solutions, LLC, may be withheld under Exemption (f). I find the Town has not met its burden of demonstrating that contracts, agreements and invoices will prejudice any current or future investigative techniques or investigative efforts of the Department under Exemption (f).

Tom Mayo SPR20/1713 Page 3 September 30, 2020 Conclusion Accordingly, the Department is ordered to review its contracts, agreements and invoices responsive to Mr. Cowperthwaite’s request, redact where necessary and provide those records, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Wheeler Cowperthwaite, Patriot Ledger