Craig P. Shibley v. Attorney General's Office (SPR 20222579)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2579 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); SPR22/2009 Determination of the Supervisor of Records (September 16, 2022) and SPR22/2249 Determination of the Supervisor of Records (October 19, 2022). The AGO responded on November 10, 2022. Unsatisfied with the response, Mr. Shibley petitioned this office and this appeal, SPR22/2579, 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. SPR22/2579 Page 2 November 29, 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 November 10th response In its November 10, 2022 response, the AGO cited Exemption (b) to withhold the requested records. 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.” The AGO further asserts, “… exemption (b) also requires a showing 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

Lorraine A.G. Tarrow, Esq. SPR22/2579 Page 3 November 29, 2022 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 any or all of the AAsG or other staff 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. We also stated that in our experience, this harassment has sometimes escalated to threats of physical and other harm towards AGO staff who are working/have worked on a particular matter or within a particular division that handled it.” Additionally, the AGO states, “[w]e take the position that distraction, interruption, harassment, verbal abuse, and/or professional, reputational, or physical threats to AGO staff, satisfy the second prong of exemption (b) as these occurrences display that the “proper performance of necessary government functions will be inhibited by disclosure.” In these times where the internet can provide information on home addresses, family members, and other personal information simply by using a name, and because of the viciousness of some of these confrontations, staff work in fear, or may ask to be transferred or leave the Office. 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).” To the extent the AGO claims that disclosure of the requested information would inhibit the proper performance of necessary government functions of the AGO, the AGO may permissibly withhold said records under Exemption (b). Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Craig Shibley