Matthew Stout v. Office of Campaign and Political Finance (SPR 20211718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1718 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 [all statewide, mayoral, legislative or countywide candidates].” Previous appeals This request was the subject of previous appeals. See SPR21/1370 Determination of the Supervisor of Records (June 10, 2021) and SPR21/1463 Determination of the Supervisor of Records (June 24, 2021). In my June 24th determination, I directed the Office to clarify whether segregable portions could be provided. Accordingly, the Office was ordered to provided Mr. Stout with a response. The Office provided Mr. Stout with a response on July 8, 2021. Unsatisfied with the Office’s response, Mr. Stout petitioned this office and this appeal, SPR21/1718, 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. 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 SPR21/1718 Page 2 July 26, 2021 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. The Office’s July 8th response In its July 8, 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).

Jason Tait SPR21/1718 Page 3 July 26, 2021 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 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. The Office asserts that disclosure of the records “. . . would [] prejudice persons by revealing their identities and cause an unwarranted invasion of their personal privacy without a countervailing justification, and therefore disclosure would be inconsistent with exemption (c).” 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. The Office explains that a referral letter “. . . under M.G.L. c. 55, § 3 typically includes a brief summary of the evidence relating to an apparent violation of the campaign finance law that may have been committed by the person referred. If that information is not redacted the letters would identify persons who are the subject of ongoing investigations. The names and identifying information regarding such individuals is so inextricably intertwined in the requested documents that redaction of such information would render the documents meaningless.” The Office states, “[e]ven if the names are redacted, the letters include other information, related to the identity of the persons referred, such as the office held, the nature of the apparent violations and factual circumstances involved. Particularly if there has been media coverage regarding a matter referred, it would not be difficult to realize the identity of the persons. . . . Under exemption (f), such disclosure would compromise effective law enforcement by prematurely releasing

Jason Tait SPR21/1718 Page 4 July 26, 2021 information about the nature and course of AGO or OCPF investigations, alert targets of the scope of potential or planned enforcement action and cause a ‘chilling effect’ by discouraging the interest such persons might otherwise have in speaking candidly with the AGO or OCPF regarding matters under investigation.” Based on the Office’s response, I find it may permissibly withhold the responsive records under Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Stout is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Stout