Catherine Christina v. Office of Public Safety and Inspections (SPR 20212713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2021 SPR21/2713 Jean McCarthy Records Access Officer Division of Professional Licensure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Jean McCarthy: I have received the petition of Catherine Christina appealing the response of the Office of Public Safety and Inspections (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 10, 2021, Ms. Christina requested the following: Any and all communications relative to the modular home construction project and the manufactured buildings/components owned by William and Catherine Christina [located at a particular address] . . . including but not limited to any building inspections, meetings, reports, complaints, notifications, orders, directives and regulatory enforcement matters as to the same between the Town of Danvers . . . and the Office of Public Safety and Inspections. The Office initially responded on June 25, 2021, and following additional correspondence with Ms. Christina, provided a second response on July 16, 2021, claiming to withhold responsive records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4 § 7(26)(f). Unsatisfied with the Office’s response, Ms. Christina appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Jean McCarthy SPR21/2713 Page 2 October 25, 2021 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 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. Current Appeal In her appeal petition, Ms. Christina contends, among other things, the following: The requested records are NOT part of a pending investigation that warrants their withholding. OPSI’s vaguely referenced pending BBRS [Board of Building Regulations and Standards] matter upon which it bases its blanket assertion is unidentified and, based upon information and belief, a non-existent “investigation”. The only potential rationalization upon which OPSI is suspected to claim any investigation exemption was a matter of an administrative procedure before the BBRS that was a public hearing relative to the manufacturer’s license which concluded over a year ago. The Office’s June 25th and July 16th Responses In its June 25, 2021 and July 16, 2021 responses, the Office claims to withhold responsive records pursuant to Exemption (f) of the Public Records Law. 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

Jean McCarthy SPR21/2713 Page 3 October 25, 2021 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. Under Exemption (f), the Office argues that the “documents being requested would disclose the organization, procedures, and other activities specifically related to the BBRS’s investigation, which would undermine that investigation. Accordingly, the Office is withholding all records responsive to [the] request.” Burden of Specificity The Office’s response did not contain the specificity required in a denial of access to public records. Based on the Office’s response, it is unclear what type(s) of records it is withholding under Exemption (f). G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also Globe Newspaper Co. -------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Office must identify the records in its possession that are responsive to this request. Further, the Office states that the requested records are associated with an investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Additionally, it is unclear whether the investigation remains active and ongoing. Also, the Office did not provide sufficient supporting information to demonstrate how disclosure of the responsive records would compromise or negatively impact the ongoing investigation or “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). It is additionally uncertain how the records can be withheld in their entirety. 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 explain whether segregable portions of the records can be provided. Pending Administrative Matter 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor:

Jean McCarthy SPR21/2713 Page 4 October 25, 2021 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its response, the Office states that the “request seeks records that are material determining a pending matter before the Board of Building Regulations and Standards (BBRS).” Based on the Office’s response, and the information provided in Ms. Christina’s appeal petition, it is unclear whether the responsive records are the subject of a pending administrative proceeding. Specifically, the Office has not provided a docket number or any other identifying information referring to the possible administrative proceeding mentioned in the Office’s response, nor has the Office explained how the responsive records are involved in the proceeding. See 950 C.M.R. 32.08(2)(b). The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Ms. Christina with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Christina