Stanley Mazurczyk v. Chelmsford, Town of - Town Manager (SPR 20211112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2021 SPR21/1112 Paul Cohen Town Manager Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Mr. Cohen: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2021, Mr. Mazurczyk requested records of “two Verizon accounts and devices” along with the “latest unredacted invoices of these Verizon accounts.” Previous appeal This request was the subject of a previous appeal. See SPR21/0795 Determination of the Supervisor of Records (April 13, 2021). SPR21/0795 was closed after this office was notified that the Town had provided responsive records to Mr. Mazurczyk on April 12, 2021. Unsatisfied with the Town’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR21/1112, 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 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

Paul Cohen SPR21/1112 Page 2 May 14, 2021 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. The Town’s April 12th response On April 12, 2021, the Town responded to Mr. Mazurczyk by providing him with records, which included redactions. The Town stated, “[i]n response to [Mr. Mazurczyk’s] appeal of the response to [Mr. Mazurczyk’s] previous March 3, 2021 request, full invoices for the referenced Verizon accounts are attached.” The Town explained that the redactions made to the records pertained to “[w]ireless device numbers for all employees involved in law enforcement and emergency response are redacted in the responsive documents under Exemption (b)” and “[i]nvoice detail listing specific call data for [identified individual]’s, including phone numbers and call times are redacted under Exemption (f).” On April 30, 2021, Mr. Mazurczyk appealed explaining that “[p]age 21 of the Verizon invoice prolific text user [identified individual] page is missing. [Identified individual] records are fully redacted claiming exemptions (b) and (f). Both of [identified individual]’s phones are redacted.” Mr. Mazurczyk stated, “I found no statutory exemption(s) that allow one individual, Mr. Cohen, claiming exemption (b) for multiple devices.” Mr. Mazurczyk also believed that Exemption (f) is not applicable to the redacted “phone record.” Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------

Paul Cohen SPR21/1112 Page 3 May 14, 2021 (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Based on the Town’s response, I find it has met its burden to show how disclosing the wireless device phone numbers of employees involved in law enforcement and emergency response would depict “internal personnel rules and practices,” under “proper performance of necessary governmental functions,” such as maintaining secure phone numbers of law enforcement and security services. Therefore, I find the Department has met its burden to withhold the responsive law enforcement and security services wireless phone numbers under Exemption (b). 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. Att’y 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 289-290. I find that it is unclear why the invoice detail “listing specific call data” for phone numbers and call times was redacted under Exemption (f). It is also unclear in the Town’s

Paul Cohen SPR21/1112 Page 4 May 14, 2021 response how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Mazurczyk with a response to the request, provided in a manner consistent with this order, 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: Stanley Mazurczyk Patricia Dzuris