Bruce Fried v. Georgetown, Town of - Town Clerk (SPR 20231284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2023 SPR23/1284 Kerri Ann McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Bruce Fried appealing the response of the Town of Georgetown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 19, 2023, Mr. Fried requested various correspondence between three named individuals, “in reference to the Conservation Commision referencing Payroll Fraud and the request for their personal emails and phone records dating from October 2022 to present[.]” Prior Appeals This request was the subject of previous appeals. See SPR23/0939 Determination of the Supervisor of Records (May 19, 2023) and SPR23/1100 Determination of the Supervisor of Records (June 8, 2023). In my June 8th determination, I found it unnecessary to opine on the Town’s May 24th fee estimate. The Town provided a response on June 1, 2023. Unsatisfied with the response, Mr. Fried petitioned this office and this appeal, SPR23/1284, 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, § l0A(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. 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

Kerri Ann McManus SPR23/1284 Page 2 July 10, 2023 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 Town’s June 1st response In its June 1, 2023 response, the Town provided communications and cited Exemption (f) of the Public Records Law to withhold additional responsive records. Current Appeal In his appeal, Mr. Fried stated, “the [named individual] is the person declaring that his own emails are exempt … I had asked for emails between [named individuals]… although the Town Clerk said she would notify all of the parties to send their email … I never received them.” On June 22, 2023, the Town provided additional records to Mr. Fried. In a response dated June 26, 2023, Mr. Fried stated, “I know that 2 full emails between [named individuals] exist, yet I was provided with a paragraph cut and pasted by [a named individual] only and nothing else.” In an email dated July 6, 2023, Mr. Fried stated, “[the Town] provided the... email to me directly this morning. This is what I was looking for... The only thing remaining open is whether or not [a named individual] has the right to ‘exempt’ his own emails.” 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

Kerri Ann McManus SPR23/1284 Page 3 July 10, 2023 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. Under Exemption (f), the Town states, “[b]ecause of other external investigations underway [the Town] can not share those communications that are directly involving any law enforcement action or investigation…” Although the Town claims it has an open investigation regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is additionally uncertain from the Town’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Town did not provide any supporting information to demonstrate how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Fried with a response to the request, provided in a manner consistent with this order, 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: Bruce Fried