Craig P. Shibley v. Office of the Attorney General (SPR 20222249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 19, 2022 SPR22/2249 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Craig Shibley appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2022, Mr. Shibley requested numerous documents and submitted his appeal regarding the following records: “[a]ttorneys currently assigned to the [Division of Open Government] and; [t]heir assigned email accounts[.]” Previous appeals This request was the subject of previous appeals. See SPR22/1765 Determination of the Supervisor of Records (August 12, 2022) and SPR22/2009 Determination of the Supervisor of Records (September 16, 2022). The AGO responded on September 30, 2022. Unsatisfied with the response, Mr. Shibley petitioned this office and this appeal, SPR22/2249, 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). 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 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

Lorraine A.G. Tarrow, Esq. SPR22/2249 Page 2 October 19, 2022 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. The AGO’s September 30th response In its September 30, 2022 response, the AGO cited Exemptions (b) and (c) to withhold the requested records. Current appeal In his appeal, Mr. Shibley asserts that the requested records cannot be withheld pursuant to Exemption (b). Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of lnformation Act). In its response, the AGO asserts, “… the names and e-mail addresses of all of the Assistant Attorneys General (AAsG) working within the Division of Open Government, or any other division, clearly ‘relate See G.L. c. 4, § 7, cl. 26(b) solely to internal personnel practices’ at the AGO because they provide a roadmap for the composition and structure of a particular division. . . . In addition to the directive that ‘[t]he division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative and judicial proceedings pertaining to the enforcement of the open meeting law,’ the Division of Open Government has taken on the responsibility of public records law enforcement and the director has assigned these duties to certain staff within the division as required.”

Lorraine A.G. Tarrow, Esq. SPR22/2249 Page 3 October 19, 2022 The AGO further asserts: The second prong that must be met for exemption (b) to apply is that ‘proper performance of necessary government functions will be inhibited by disclosure.’ As the chief law enforcement office of the Commonwealth, the AGO’s forty (40) divisions make difficult decisions regarding a host of issues that give rise to aggrieved members of the public who may be personally invested in the results of a particular matter. Because the AGO often represents the public interest on difficult – and sometimes sensitive – issues, it is especially important to keep unsolicited communications with staff handling such matters to a minimum and on point, before, during, and after the division’s investigation. Accordingly, the disclosure of the names and/or e-mail addresses of all of the AAsG assigned to a particular division within the AGO, from which one could obtain their direct dial telephone numbers, would inhibit the ‘proper performance of necessary government functions’ by interfering with the overall operations of the office and the substantive work of the divisions and by hindering the ability of AGO employees to carry out their duties effectively and without distraction, interruption, or harassment. See Town of Brookline v. Goldstein, 388 Mass. 443, 449-450 (1983) (‘Town officials have a legitimate expectation of … freedom from harassment … Public service should not be an ordeal.’) … the AGO maintains that the requested information relates to internal personnel practices, the disclosure of which would inhibit the proper performance of a necessary governmental function – accomplishing the substantive work of the Division of Open Government. Accordingly, the information you requested in Parts Four (4) and Five (5) is exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(b).” Based on the AGO’s response, I find it remains unclear how the requested records relate “solely to internal personnel rules and practices of the government unit.” It is additionally uncertain how disclosure of the names and email addresses would hinder the proper performance of a necessary government function. See G. L. c. 4, § 7(26)(b). The AGO must clarify this. Conclusion Accordingly, the AGO is to provide Mr. Shibley with a response to the request 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 this response to this office at pre@sec.state.ma.us.

Lorraine A.G. Tarrow, Esq. SPR22/2249 Page 4 October 19, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Craig Shibley