Matthew Stout v. Office of Campaign and Political Finance (SPR 20211463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2021 SPR21/1463 Jason Tait Records Access Officer Office of Campaign and Political Finance One Ashburton Place, Room 411 Boston, MA 02108 Dear Mr. Tait: I have received the petition of Matthew Stout of the Boston Globe appealing the response of the Office of Campaign and Political Finance (Office/OCPF) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 13, 2021, Mr. Stout requested “. . . copies of referral letters [the Office] has sent to the AG since Jan. 1, 2015 concerning any of [several named individuals].” Previous appeal This request was the subject of a previous appeal. See SPR21/1370 Determination of the Supervisor of Records (June 10, 2021). SPR21/1370 was closed after this office learned that the Office had provided Mr. Stout with a supplemental response on June 9, 2021. Unsatisfied with the Office’s response, Mr. Stout petitioned this office and this appeal, SPR21/1436, 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

Jason Tait SPR21/1436 Page 2 June 24, 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 Office’s June 9th response In its June 9, 2021 response, the Office asserts that the records are exempt from disclosure under Exemptions (c) and (f). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The

Jason Tait SPR21/1436 Page 3 June 24, 2021 public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Office explains that “[b]alancing the public’s right to know against the important privacy interests of persons involved compels a conclusion that disclosure of referral letters regarding matters not yet public, which are the subject of an ongoing investigation by the AGO, would unfairly prejudice the privacy interests of persons or entities named in the letters without justification.” The Office further explains that “OCPF by referring such persons or entities, did not find that they violated the law. Instead, OCPF found evidence suggesting that they may have violated the law. Providing the referral letters would unfairly prejudice those individuals without a sufficient countervailing justification.” 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 289-90. Under Exemption (f), the Office explains that “. . . the referral letters at issue refer to matters that remain under investigation by the AGO, and those investigations are inextricably linked to OCPF’s referral letters. The referral letters requested . . . contain information that, if disclosed, would prejudice the ability of the AGO to conduct investigations in pending matters relating to the persons or entities identified in these letters.” The Office further asserts that disclosure of the records “. . . would prejudice future investigative actions of the AGO and OCPF because it would create the precedent that would allow sensitive information to become public while a confidential review is ongoing. By revealing the identity of persons or entities referred, and thereby exposing them to public inquiry, this may chill their cooperation and willingness to

Jason Tait SPR21/1436 Page 4 June 24, 2021 speak candidly during an OCPF or AGO investigation or may otherwise affect their testimony.” Based on Office’s response, it is unclear whether segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Stout with a response to the request, provided 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: Matthew Stout Gregory Birne, Esq.