David Zuares v. Department of Fire Services (SPR 20211375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 14, 2021 SPR21/1375 Glenn M. Rooney, Esq. Deputy General Counsel Department of Fire Services P.O. Box 1025 1 State Road Stow, MA 01775 Dear Attorney Rooney: I have received the petition of Attorney David J. Zuares appealing the response of the Massachusetts Department of Fire Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Zuares requested records relating to an incident occurring on January 4, 2021, at an identified address. Previous appeal This request was the subject of a previous appeal. See SPR21/1263 Determination of the Supervisor of Records (May 24, 2021). The Department provided a response on May 20, 2021. Unsatisfied with City’s May 20th response, Attorney Zuares petitioned this office and this appeal, SPR21/1375, 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

Glenn M. Rooney, Esq. SPR20/1375 Page 2 June 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. Department May 20th Response In its May 20, 2021 response, the Department indicated that it is “the Department's position that that disclosure of investigatory materials related to an ongoing investigation prior to its conclusion could harm ongoing investigation efforts by the Department and/or other investigative entities. In light of the pending investigation, the report(s) you seek are not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f).” The Department claimed it “may continue to pursue their investigation and may interview or re-interview existing or new witnesses. Therefore, the disclosure of certain information during the open investigation and before the statute of limitations has passed, could hinder the Department in its investigative efforts since, for example, additional witnesses or existing witnesses could be added to the investigation and the Department wants to ensure these parties are and/or remain candid.” 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. 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

Glenn M. Rooney, Esq. SPR20/1375 Page 3 June 14, 2021 about matters. Bougas 371 Mass at 62. 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 (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. To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Attorney Zuares 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. Attorney Zuares may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: David J. Zuares, Esq. Mary Elizabeth Lynch-Lent, RAO