Eric Walz v. Attorney General's Office (SPR 20231715)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2023 SPR23/1715 Lorraine A.G. Tarrow, Esq. Assistant Attorney General 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 Eric Walz, Esq., of Rudolph Friedmann LLP, 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 June 28, 2023, Attorney Walz requested the following records: [1.] ... all documents and communications between the AGO and the representative or representatives for the Worcester City Motel in Shrewsbury, Red Roof Inn in Sutton and Red Roof Inn in Woburn, or their [named] managers ... that were created and/or exchanged as part of the AGO’s investigation into the [named managers]... labor violations, including the [named managers]... failure to timely pay wages and earned sick time to their employees. [2.] ... copy of any complaint made to the AGO, any consent and/or other orders signed by the [named managers]... and any other documents and/or communications concerning this matter. The AGO responded on July 12, 2023. Unsatisfied with the response, Attorney Walz petitioned this office and this appeal, SPR23/1715, 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. SPR23/1715 Page 2 August 8, 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 July 12th response In its July 12, 2023 response, the AGO claimed Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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. In its response, the AGO advised that the records “… constitute investigatory materials and/or sources of information related to an open and active investigation that are necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement for this and other similar investigations by revealing investigative techniques, including the nature and course of our investigation, and/or sources of information that would cause a chilling effect on individuals to speak freely with law enforcement that such disclosure would not be in the public interest.” The AGO further advised that “...redaction would render the records meaningless.” Under the Public Records Law, the burden shall be upon the records custodian to identify

Lorraine A.G. Tarrow, Esq. SPR23/1715 Page 3 August 8, 2023 records being withheld and prove with specificity the exemption which applies. 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. The AGO must identify records in its possession that it withheld under Exemption (f). Further, it remains unclear how segregable portions cannot be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the AGO is to provide Attorney Walz 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. Attorney Walz may appeal the substantive nature of the AGO’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eric Walz, Esq.