Brien Connolly v. Department of Transitional Assistance (SPR 20231108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 8, 2023 SPR23/1108 Lauren Picone, Esq. Deputy General Counsel Department of Transitional Assistance 600 Washington Street Boston, MA 02111 Dear Attorney Picone: I have received the petition of Brien P. Connolly, Esq., of Avery, Dooley, & Noone LLP, appealing the response of the Department of Transitional Assistance (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2023, Attorney Connolly requested the following records: Any and all materials related to a complaint received against [an identified] ISA Officer, alleging he engaged in inappropriate behavior/misconduct on or about March 27, 2023, at the Hyannis office of the Department of Transitional Assistance (DTA). And, any and all information supporting DTA’s subsequent order to ISA to remove [an identified individual] from his post at the Hyannis DTA, and to refrain from posting him to any other DTA facility. Materials sought include, but are not limited to, any and all complaints, reports, reports of investigation, findings, witness affidavits, declarations, communication logs or transcripts, and any other materials relating to [an identified individual]. The Department provided a response on May 17, 2023. Unsatisfied with the Department’s response, Attorney Connolly petitioned this office and SPR23/1108, 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 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

Lauren Picone, Esq. SPR23/1108 Page 2 June 8, 2023 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. The Department’s May 17th response In its May 17, 2023 response, the Department cited Exemption (f) of the Public Records Law to withhold the 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 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 289-290. In its response, the Department stated the following: It is DTA’s reasonable belief that disclosure of such records at this time would compromise investigative efforts and that such records are therefore exempt from disclosure under M.G. L. c. 4, § 7 (26)(f). The records will no longer be subject to this

Lauren Picone, Esq. SPR23/1108 Page 3 June 8, 2023 exemption upon completion of an investigation but may be subject to other exemptions under the public records law. Based on the Department’s response, it is uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Further, it is unclear why the Department cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. The Department must clarify these matters. Further, based on the Department’s response, it is unclear what type of records it possesses that it is withholding from disclosure. 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 . . .”). Therefore, the Department must identify the type of records it has in its possession that it is withholding under Exemption (f). As a result, I find that the Department did not meet its burden of specificity to withhold the requested records under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Attorney Connolly with a response to his request, provided 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 the response to this office at pre@sec.state.ma.us. Attorney Connolly may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brien P. Connolly, Esq.