David Zuares v. Department of Fire Services (SPR 20211745)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2021 SPR21/1745 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 appeals This request was the subject of previous appeals. See SPR21/1263 Determination of the Supervisor of Records (May 24, 2021); SPR21/1375 Determination of the Supervisor of Records (June 14, 2021). The Department provided a response on June 22, 2021. Unsatisfied with the Department’s June 22nd response, Attorney Zuares petitioned this office and this appeal, SPR21/1745, 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. SPR21/1745 Page 2 July 27, 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 Department’s June 22nd Response In its June 22, 2021 response, the Department indicated that “this incident remains the subject of an on-going criminal investigation being conducted by the Worcester County District Attorney's Office and the Massachusetts State Police, assigned to the Office of the State Fire Marshal (a/k/a Department of Fire Services).” 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 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

Glenn M. Rooney, Esq. SPR21/1745 Page 3 July 27, 2021 details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In the June 22nd response, the Department explained, “[i]t is the Department's position that the disclosure of any of the aforementioned records (or any portions thereof), as they relate to an ongoing investigation, could harm ongoing investigation efforts by the Department and/or the Worcester County District Attorney's Office. More specifically and without revealing the contents of the records, the reports within the custody or control of the Department of Fire Services contain investigative findings, conclusions, statements, sources of information and investigative techniques, the disclosure of which, prior to the completion of the investigation would serve to compromise the integrity of the investigation and potentially taint any evidence or information that has or must still be considered by the investigating agencies.” The Department stated, “the Department may continue to pursue their investigation and may interview or re-interview existing or new witnesses. Therefore, the disclosure of the aforementioned records 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.” I find the Department may withhold the records under Exemption (f). Please be advised that a change in the status of the investigation could impact the applicability of Exemption (f) to these records. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Zuares is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: David J. Zuares, Esq. Mary Elizabeth Lynch-Lent, RAO