Nathaniel Adams v. Office of Campaign and Political Finance (SPR 20232303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2023 SPR23/2303 Jason Tait Records Access Officer Office of Campaign and Political Finance One Ashburton Place, Room 411 Boston, MA 02108 Dear Mr. Tait: I have received the petition of Nathaniel Adams appealing the response of the Office of Campaign and Political Finance (Office/OCPF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2023, Mr. Adams requested: [T]he following records related to a completed OCPF investigation, CPF-22-35 (The Committee to Elect [a named individual], or the “Committee”), which resulted in the issuance of [a specified] Public Resolution Letter: Any written records (such as internal memoranda or notes from a call between OCPF and the Committee) that identify the representative or agent of the Committee who erroneously advised the donors regarding the contributions that were the subject of the complaint. The Office responded on September 26, 2023, citing Exemption (f) of the Public Records Law for withholding responsive records. Unsatisfied with the Office’s response, Mr. Adams appealed, and this case 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). It is the burden of the records custodian to demonstrate the application of an exemption in 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

Jason Tait SPR23/2303 Page 2 October 11, 2023 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. Current Appeal In his appeal petition, Mr. Adams contends that “OCPF has used an overly broad interpretation of the stated exemption,” and he goes on to argue the following: I am merely looking for a record that provides the identity of the individual who was found to have violated the campaign finance rules. If OCPF has such a record, I would be satisfied receiving a copy that is appropriately redacted - I do not need an entire case file, etc. I also am not looking for any information that would identify the complainant, or otherwise have a potentially chilling effect on such complaints being brought to OCPF’s attention in the future. The Office’s September 26th and September 28th Responses In its September 26, 2023 response, the Office cites Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). 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.

Jason Tait SPR23/2303 Page 3 October 11, 2023 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18 (1979); 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its September 26th response, the Office argues that “OCPF withholds those records pursuant to exemptions set forth in M.G.L. c. 4, §7(26)(f) (investigatory exemption), which apply to the records in their entirety.” In a September 28, 2023 email to this office, the Office further argues the following: The type of records requested are created and maintained by an OCPF staff attorney in electronic format. The information is contained within a document that is inextricably linked with the staff attorney’s investigatory process and attorney opinion work product throughout. The identities of individuals who have been interviewed by OCPF in connection with legal cases are not publicly known. Revealing such identities in the public domain could potentially have a chilling effect on the cooperation of individuals who may be called upon as witnesses in future cases. To mitigate this concern, OCPF’s attorneys and investigators exercise discretion in matters concerning the disclosure of notes and comments within the electronic system that specifically identify witnesses. Based on the Office’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Office did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Office must clarify these matters. Additionally, it is unclear whether the responsive records can be redacted in order to protect the identity of voluntary witnesses. The Office must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979)

Jason Tait SPR23/2303 Page 4 October 11, 2023 (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). Further, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (f). 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”). Conclusion Accordingly, the Office is ordered to provide Mr. Adams 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. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Adams