Nina Sparling v. Attorney General's Office (SPR 20230547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2022 SPR23/0547 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 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2022, Ms. Sparling requested: Any communications ... sent or received by the [named individuals] of the AGO’s Fair Labor Division that contains the words ‘fish’ ‘seafood,’ ‘trafficking’ ‘teen’ or ‘minor’ between 2/1/2019 and 12/31/2019... Subsequently, Ms. Sparling modified her request on December 22, 2022 and January 9, 2023. The modified request which is the subject of this determination clarified that Ms. Sparling was not seeking correspondence other than that related to New Bedford, and items such as “Google alerts” or newspaper clips were excluded although they may be technically responsive because they contained the requested search terms. The AGO responded on November 22, 2022, December 22, 2022 and March 13, 2023, providing a fee estimate of $518.75 which was paid. Unsatisfied with the March 13th response, Ms. Sparling petitioned this office and this appeal, SPR23/0547, 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. SPR23/0547 Page 2 April 4, 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 March 13th response In its March 13, 2023 response, the AGO produced fourteen pages of responsive records and cited Exemption (f) of the Public Records Law in support of the redactions. The AGO further responded that it was “withholding in their entirety fourteen (14) additional records, eight (8) of which are individual communications in the same email chain, that may be responsive to your request in accordance with M.G.L. c. 4, § 7, cl. 26(f).” Current appeal In her appeal, Ms. Sparling asserts that “[t]here has been no further explanation of why the 447 additional records are not responsive to my request. Under G. L. c. 66, § 10(a-b), an agency must provide specific explanations for why it is withholding records. The Attorney General’s office has not done this for the vast majority of records it reviewed in response to this request. We have no clear answer as to why we’re unable to review so many records that appeared at first to be responsive.” 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

Lorraine A.G. Tarrow, Esq. SPR23/0547 Page 3 April 4, 2023 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 indirectly identified even with redaction. In its response, the AGO advised that it was redacting certain records “...insofar as they contain investigatory materials necessarily compiled out of the public view by law enforcement officials, the disclosure of which would compromise effective law enforcement ...” The AGO further opined that it was withholding eight responsive records in their entirety pursuant to Exemption (f) and that the records are “... investigatory materials that reveal confidential investigative techniques, procedures, and sources of information and/or constitute “witness statements.” The AGO asserted, “. . . records are necessarily compiled out of the public view by the AGO as their disclosure would compromise effective law enforcement by: 1) providing target companies with a roadmap to the AGO’s legal and investigative strategies, placing the AGO at a disadvantage during any currently open investigations, as well as for similar investigations in the future; and 2) dissuading private citizens who require assurances of confidentiality so that they will speak openly about matters under investigation without fear (the ‘chilling effect’).” Based on Ms. Sparling’s appeal, it is unclear whether the AGO possesses any additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the AGO must clarify whether the 447 identified records are responsive to Ms. Sparling’s request. Conclusion Accordingly, the AGO is to provide the Ms. Sparling with a response to the request, provided in a manner consistent with 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. Sparling may appeal the substantive nature of the AGO’s response within ninety (90) days. See 950 C.M.R.

Lorraine A.G. Tarrow, Esq. SPR23/0547 Page 4 April 4, 2023 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nina Sparling