Thomas V. Ralph v. Boxborough, Town of - Town Clerk (SPR 20232058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2023 SPR23/2058 Rebecca J. Harris, PhD Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Attorney Thomas V. Ralph appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 21, 2023, Attorney Ralph requested, among other items, the following: Any and all incident reports, police reports, supplemental reports, or memorandum/randa of interviews, notes, employment applications, names of individuals interviewed, background check releases, and emails (internal and external) relative to the background investigation for [a named individual] conducted as part of the background check for Fire Chief during the period dated 06/01/2023 to 07/24/2023. The Town responded on August 7, 2023, citing Exemptions (b) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(b), (f). Unsatisfied with the Town’s response, Attorney Ralph appealed, and this case was opened as a result. Status of the Requestor In his appeal petition, Attorney Ralph indicates that he represents an individual named in the request. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Ralph’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Rebecca J. Harris, PhD SPR23/2058 Page 2 September 13, 2023 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). 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. Att’y 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 August 7th Response In its August 7, 2023 response, the Town provides some responsive records, and states that “as for the ... copies of the documents related to the background investigation of [the individual] that the Town conducted in connection with his application for employment, those documents are being withheld in their entirety pursuant to Exemptions (b) and (f) of the Public Records Law.” See G. L. c. 4, § 7(26)(b), (f). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an

Rebecca J. Harris, PhD SPR23/2058 Page 3 September 13, 2023 agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Town argues the following: Records that relate solely to the Town’s internal personnel practices may be withheld or redacted pursuant to this exemption where the proper performance of these functions will be inhibited if such internal policies are disclosed to the public. Based on the Town’s response, it is unclear how the responsive records “relate solely to internal personnel rules and practices” of the Town. Additionally, it is uncertain whether the records are predominantly used internally, and how release of the records would risk circumvention of Town regulations. The Town must clarify these matters. 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

Rebecca J. Harris, PhD SPR23/2058 Page 4 September 13, 2023 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. 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. Id. 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. Under Exemption (f), the Town argues the following: Following the Town’s careful review of these records, they are being withheld in their entirety as the release of said records would disclose confidential investigative techniques, procedures and/or sources of information relative to the subject investigation that could impact future investigations, as well as information provided voluntarily by third-parties during said investigation the identity of which is known to your client. Based on the Town’s response, it is unclear how the responsive records constitute “investigatory materials necessarily compiled out of the public view by law enforcement,” nor how the records would disclose investigative techniques, nor how release “would probably so prejudice the possibility of effective law enforcement.” It is additionally unclear whether the “third-parties” described in the Town’s response constitute the voluntary witnesses contemplated under Exemption (f). The Town must clarify these matters. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, it is unclear from the Town’s response which specific records the Town intends to withhold or redact. The Town must identify the records, categories of records, or portions of records it intends to withhold or redact under the Public Records Law. See G. L. c. 66, § 10(b)(iv) (a 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”). Additionally, based on the Town’s response, it is unclear how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are

Rebecca J. Harris, PhD SPR23/2058 Page 5 September 13, 2023 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 Town is ordered to provide Attorney Ralph with a response to her 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. Sincerely, Manza Arthur Supervisor of Records cc: Thomas V. Ralph, Esq.