Paul Bartolacci v. Department of Fire Services (SPR 20220157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2022 SPR22/0157 Mary Elizabeth Lynch-Lent Department of Fire Services 1 State Road P.O. Box 1025 Stow, MA 01775 Dear Ms. Lynch-Lent: I have received the petition of Paul Bartolacci, on behalf of Kevin Murphy, appealing the response of the 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). On December 23, 2021, Mr. Murphy requested a copy of the “Fire Cause/Origin Investigation Report # 16-510. The date of loss was 8/5/2016.” The Department provided a response on December 23, 2021, denying access to the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Bartolacci petitioned this office and this appeal, SPR22/0157, was opened as a result. While this appeal was pending, the Department provided a supplemental response on January 31, 2022. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Murphy’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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

Mary Elizabeth Lynch-Lent SPR22/0157 Page 2 February 3, 2022 form or characteristics, made or received by any officer or employee of any agency or 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 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 December 23rd and January 31st responses In its December 23, 2021 response, the Department indicates, “. . . according to information recently provided to this office, this incident remains the subject of an on-going investigation being conducted by the Massachusetts State Police, assigned to the Office of the State Fire Marshal (a/k/a Department of Fire Services). It is the Department’s position 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 explains that 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. . . . Accordingly, at this time, the Department declines to provide you with a copy of the report and other associated materials. Upon the conclusion of the aforementioned investigation, the Department will release the records to you, subject to applicable exemptions to the Public Records Law.” On January 31, 2022, the Department provided a supplemental response indicating that “. . . 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 references SPR19/0894 to support its position.

Mary Elizabeth Lynch-Lent SPR22/0157 Page 3 February 3, 2022 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, 371 Mass at 62. 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. In his appeal petition, Mr. Bartolacci states the following: We are unaware of any ongoing investigative work being conducted by the Massachusetts State Police, or the office of the State Fire Marshal relating to this fire. The fire occurred more than five and a half years ago. [An identified Trooper’s] investigation apparently lasted a few months following the fire. He worked in conjunction with numerous private fire investigators, including Mr. Murphy, to perform site work and interview witnesses. Further, we are unaware of any potential criminal investigation in this matter, or the existence of any criminal charges that have been or may be filed. There was never any suggestion that this was an intentional or incendiary fire. Disclosure of the information requested would not include the premature disclosure of any data relied upon by the Commonwealth of Massachusetts with respect to any criminal charge or upcoming trial. . . . In this instance, the only active dispute arising from the fire are a series of civil litigation matters, primarily related to insurance issues. . . . In a telephone conversation between this office and a representative of the Department, this office was made aware that there has been recent development regarding this incident, and that this investigation remains active and ongoing.

Mary Elizabeth Lynch-Lent SPR22/0157 Page 4 February 3, 2022 In light of the above, I find the Department may permissibly withhold the responsive records from disclosure 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Bartolacci