Nathaniel J. Hyman v. North Attleborough, Town of - Town Clerk (SPR 20221099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2022 SPR22/1099 Patricia McNielly Town Clerk Town of North Attleborough 43 South Washington Street North Attleborough, MA 02760 Dear Ms. McNielly: I have received the petition of Attorney Nathaniel J. Hyman of ArentFox Schiff LLP appealing the response of the Town of North Attleborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 5, 2022, Attorney Hyman requested the following records concerning a specific incident: [1] All records concerning the alleged assault of [named individual]…at or around North Attleborough High School[;] [2] All records regarding or concerning the North Attleborough School District’s or the School’s response to the incident, including all records concerning any investigation conducted by the School or the District[;] [3] All records, from January 1, 2018 to the present, regarding any School or District policy or procedure concerning bullying[;] [4] All records, from January 1, 2018 to the present, regarding any School or District policy or procedure concerning education regarding LGBTQ issues, including policies and procedures to combat harassment of LGBTQ students. Previous Appeal This request was the subject of a previous appeal. See SPR22/1009 Determination of the Supervisor of Records (May 5, 2022). The Town provided a response on May 4, 2022. Unsatisfied with the response, Attorney Hyman petitioned this office and this appeal, SPR22/1099, 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 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

Ms. Patricia McNielly SPR22/1099 Page 2 May 24, 2022 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). 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(d)(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…”); 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). 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 Town’s May 4th Response In its May 4, 2022 response, the Town stated that “…the Police Department can confirm that it has police records responsive to Item 1 of your request…given the ongoing court proceedings involve a juvenile, the records will be withheld at this time pursuant to Exemption (f)…” 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. 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 289-290.

Ms. Patricia McNielly SPR22/1099 Page 3 May 24, 2022 The Town asserts that, the records requested pertain to a pending criminal case involving a juvenile and this matter remains open in judicial proceedings at this time. As such, the Police Department has determined that any disclosure of such materials at this time would not be in the public interest and prejudice ongoing law enforcement efforts pursuant to Exemption (f). Current Appeal In his appeal petition, Attorney Hyman contends that: [t]he second, third and fourth prongs of my request did not appear to be addressed by the Town’s response. The Town’s current response focuses entirely on the Town’s Police Department’s access to (and possession of) responsive materials…such response clearly fails to address other potentially responsive documents. Attorney Hyman additionally responds in his appeal petition, “…requests three and four, in particular, have no connection whatsoever to the Town’s Police Department; the Town’s response is thus clearly deficient in connection with those requests.” In email correspondences dated May 12, 2022, a representative of the Town notified a staff attorney of the Public Records Division that responsive records were sent by the school department on May 7, 2022. However, based on the Town’s correspondences, it is unclear whether it addresses the second, third and fourth prongs of Attorney Hyman’s request. Upon review, it remains unclear what responsive records the Town possesses with respect to the second, third and fourth prongs of Attorney Hyman’s request. The Town must identify what records it has in its possession, custody or control that are responsive to Attorney Hyman’s request. See G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). As a result, I find that the Town did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Town is ordered to provide Attorney Hyman 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.

Ms. Patricia McNielly SPR22/1099 Page 4 May 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nathaniel J. Hyman, Esq.