Joseph Viglione v. Attorney General's Office (SPR 20222771)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2771 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 Joseph Viglione appealing the response of the Office of the Attorney General (Office/AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2022, Mr. Viglione requested the following: 1) Any document that shows that the statute of limitations on the AG’s office investigation into [named entity] has expired, even if it is a copy of the law that oversees the negligent and deceptive public charity also known as [named entity]; and 2) All texts, inter-office memos, emails of the Attorney General’s office in regards to [named entity] and other documents that show the work product generated by any and all of the staff of the AG in regards to the board members and staff of [named entity] including responses by city hall and the [named entity]. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2092 Determination of the Supervisor of Records (September 27, 2022). In my September 27th determination, I closed the appeal, because the Office indicated it would provide a further response to Mr. Viglione. On October 12, 2022, the Office provided a response to Mr. Viglione. Unsatisfied with the Office’s response, Mr. Viglione petitioned this office and this appeal, SPR22/2771, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR22/2771 Page 2 December 16, 2022 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 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 Office’s October 12th response In the Office’s October 12, 2022, response the Office asserted that certain parts of Mr. Viglione’s request were unclear. The Office further cited Exemption (f) of the Public Records law to withhold requested records. 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.

Lorraine A.G. Tarrow, Esq. SPR22/2771 Page 3 December 16, 2022 In its response, the Office states, “…we interpret your request to seek internal AGO records demonstrating our ‘work product’ in the Medford Community Cablevision, Inc. dissolution matter. Because this dissolution matter remains open and pending, we stand by our position (which we have previously and recently stated in response to your similar public records requests [internal citations omitted]) that any records we have not already provided to you that may be responsive to your request are exempt pursuant to G.L. c. 4, § 7, cl. 26(f) …” The Office further explained, “[t]he records at issue contain information that, if disclosed, would prejudice an open investigation by revealing our legal and investigative strategies and techniques as well as confidential sources of information, thereby chilling the cooperation of witnesses/potential witnesses, including the target entity. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976).” The Office stated, “…publicly disclosing investigative materials would provide other target entities with a roadmap to the AGO’s legal and investigative strategies, placing the AGO at a disadvantage during an open investigation, as well as for similar investigations in the future.” The Office concludes, “…the AGO maintains that it would not be in the collective public interest to disclose the requested records under G.L. c. 4, § 7, cl. 26(f).” Upon review, it is unclear which records that the Office intends to withhold under Exemption (f) of the Public Records Law. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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. It is additionally uncertain whether segregable portions of the records can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Office is to provide Mr. Viglione with a response to the request, provided in a manner consistent with the Public Records Law and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Viglione