Nina Sparling v. Office of the Attorney General (SPR 20230006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2023 SPR23/0006 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 Nadine Sebai and Nina Sparling, of The Public’s Radio 89.3 FM, 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 20, 2022, Ms. Sebai requested the following records: (1) The email exchanges and any other correspondence discussing the anecdotal complaints the AGO received about teenagers working in seafood processing facilities in New Bedford, MA between 3-4 years ago (2018-19). (2) Any documentation of the ‘complaint visits’ to the facilities that followed the anecdotal complaints and their findings, including notes taken by investigators, records of interviews with witnesses, and any summary reports produced following the investigations. Previous appeal This request was the subject of a previous appeal. See SPR22/2512 Determination of the Supervisor of Records (November 28, 2022). The AGO responded on December 19, 2022. Unsatisfied with the response, Ms. Sparling petitioned this office and this appeal, SPR23/0006, 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). 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. SPR23/0006 Page 2 January 18, 2023 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. The AGO’s December 19th response In its December 19, 2022 response, the AGO withheld the requested records pursuant to Exemption (f) of the Public Records Law. 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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be

Lorraine A.G. Tarrow, Esq. SPR23/0006 Page 3 January 18, 2023 indirectly identified even with redaction. In its response, the AGO asserted, “[t]he AGO stands by its position that it properly withheld ‘witness statements,’ and other materials, including internal AGO notes, in accordance with M.G.L. c. 4, § 7, cl. 26(f), as they are investigatory materials related to the inspection visits referenced in the records provided that reveal confidential investigative techniques, procedures, and sources of information … A written recording of interviews conducted during an employment investigation of a particular industry (i.e., witness statements) or internal AGO notes regarding the investigation cannot be properly redacted because they would be so redacted that they would be rendered entirely meaningless.” The AGO further advised, “… revealing any information from the records, such as internal AGO notes, the identities of the witnesses, the interview questions asked by the AGO, or the substance and narrative of the interviews would compromise effective law enforcement by: 1) providing target companies working in a specific industry with a roadmap to the AGO’s legal and investigative strategies and techniques, placing the AGO at a disadvantage during any currently open investigations, as well as for similar investigations in the future; and 2) dissuading witnesses/private citizens who require assurances of confidentiality so that they will speak openly about matters under investigation without fear of intimidation, retaliation, or invasion of privacy (the “chilling effect”).” To the extent the AGO claims that disclosure would compromise effective law enforcement, the AGO may permissibly withhold the responsive records under Exemption (f) of the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Nina Sparling