Maggie Mulvihill v. Office of the Comptroller (SPR 20232859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2023 SPR23/2859 Darian Roberts, Esq. Records Access Officer Office of the Comptroller One Ashburton Place, 9th Floor Boston, MA 02108 Dear Attorney Roberts: I have received the petition of Maggie Mulvihill appealing the response of the Office of the Comptroller (Office) 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, Ms. Mulvihill requested: [T]he following from Jan. 1, 2020, to present: [1.] The names, descriptions and numbers of all accounts for prosecutors, including the Attorney General, which relate to state and federal forfeiture funds. [2.] All deposits or revenue for Massachusetts prosecutors, including the Attorney General, relating to state and federal forfeiture funds. [3.] All expenditures for Massachusetts prosecutors, including the Attorney General, relating to state and federal forfeiture funds. Previous Appeal This request was the subject of a previous appeal. See SPR23/2466 Determination of the Supervisor of Records (November 1, 2023). In my November 1st determination, I ordered the Office to clarify whether it possesses additional records responsive to Ms. Mulvihill’s request. Subsequently, the Office responded on November 14, 2023. Unsatisfied with the Office’s response, Ms. Mulvihill further 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 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

Darian Roberts, Esq. SPR23/2859 Page 2 December 7, 2023 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. Current Appeal In her appeal petition, Ms. Mulvihill first contends that “the ... spreadsheet provided on Oct. 13, 2023, by the Comptroller shows more than half of the account names contain redacted information – far more than a ‘small number of records’ ... The Comptroller’s office did not define a ‘small number’ in its Oct. 13, 2023, response but leaves it to the requester to try to determine.” Second, she contends that “the ... spreadsheet also does not contain unredacted account information for numerous state prosecutor’s offices, but only the Attorney General, the Cape and Islands District Attorney, the Hampden County District Attorney, the Suffolk County District Attorney, and the Norfolk County District Attorney. State law, specifically M.G.L. Ch. 94 c, section 47, (k1) and (k2), requires each prosecutor’s office to provide seizure and spending information to the state Treasurer’s office each year.” Third, she contends that the Office “did not provide itemized spending for the redacted accounts because it claims that spending is all for confidential investigations. ... [T]he Comptroller offers no specific explanation or justification as to how releasing the individualized expenditure amounts for the unredacted account information would violate state law.” The Office’s Responses In its previous October 13, 2023 response, the Office directed Ms. Mulvihill to a website containing information responsive to Part 2 of her request, and provided a redacted spreadsheet responsive to Parts 1 and 3 of her request. In its October 31, 2023 and November 14, 2023 responses, the Office cites Exemptions (a) and (f) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Darian Roberts, Esq. SPR23/2859 Page 3 December 7, 2023 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) In its October 31st response, the Office, under Exemption (a), cites CORI for redacting responsive records. The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167.

Darian Roberts, Esq. SPR23/2859 Page 4 December 7, 2023 In its October 31st response, under Exemption (a) and CORI, the Office explains the following: [T]his spreadsheet does not include spending in the E21 – Confidential Investigations Expenses object code. This information, and the information redacted from the attached table, is exempt from disclosure pursuant to M.G.L. c. 4, § 7, cl. 26 insofar as it contains: (a) information that is specifically or by necessary implication exempted from disclosure by statute, namely M.G.L. c. 6, §§ 167, 172 (Criminal Offender Record Information)... Based on the Office’s response, I find that the Office has not met its burden to redact the responsive records under Exemption (a) and CORI. Specifically, it is not clear how the information described above, contained in financial tables and spreadsheets, constitutes “information recorded in criminal proceedings that are not dismissed before arraignment,” or how individuals could be directly or indirectly identified from the redacted information. See G. L. c. 6, § 167. 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 October 31st and November 14th responses, the Office argues the following under Exemption (f): [T]his spreadsheet does not include spending in the E21 – Confidential Investigations Expenses object code. This information, and the information

Darian Roberts, Esq. SPR23/2859 Page 5 December 7, 2023 redacted from the attached table, is exempt from disclosure pursuant to M.G.L. c. 4, § 7, cl. 26 insofar as it contains: . . . (f) investigatory materials necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement, currently and in the future, by revealing the custodial department’s investigative techniques and procedures related to criminal cases that such disclosure would not be in the public interest. . . . [T]he spreadsheet provided to Professor Mulvihill contains information for all accounts with the word ‘forfeiture’ in the name that are in the state accounting system and are not exempt from disclosure. A small number of accounts were withheld because they were included in the CTHRU transparency exclusion table due to the confidential nature of the information contained therein. For the nonexempt accounts, the Office provided total spending amounts for these accounts, but did not provide detailed expenditure information because all spending in these accounts was coded as “E21” in the state accounting system. This object code is described in the Comptroller’s Expenditure Classification Handbook as follows: E21 CONFIDENTIAL INVESTIGATIONS EXPENSES – Payments or reimbursements for expenses incurred while performing confidential investigations. Because providing detailed spending could compromise law enforcement investigations, the Office believes this information is exempt pursuant to M.G.L. c. 4 § 7, cl 26 (f). Based on the Office’s response, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the Office did not demonstrate how disclosure of the withheld records and redacted information “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 from the Office’s response which specific records the Office intends to withhold or redact. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (a) and (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 Ms. Mulvihill with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its

Darian Roberts, Esq. SPR23/2859 Page 6 December 7, 2023 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: Maggie Mulvihill