Colman Herman v. Attorney General's Office (SPR 20232941)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2941 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General General Counsel’s Office One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Colman Herman 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 November 20, 2023, Mr. Herman requested, “... copies of any and all communications in the files of the office of the attorney general regarding the cashless payment system in use at Fenway Park. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes ... for the period November 13, 2023 to the present.” The AGO responded on December 5, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/2941, 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 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 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

Hanne Rush, Esq. SPR23/2941 Page 2 December 20, 2023 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 December 5th response In its December 5, 2023 response, the AGO provided two pages of records responsive to the request. The AGO cited Exemption (f) of the Public Records Law to withhold the balance of the responsive records in their entirety. Current appeal In his appeal, Mr. Herman asserts that the AGO “... fails to describe the records that [it] ... is withholding.” Mr. Herman further states, “... it appears that any investigation is over, as evidenced by the following. On September 8, 2023, I made the same public records request, but for a different time period. In response, on September 29, 2023, [the AGO] ... withheld responsive records in their entirety based on a claim not only of exemption (f), but also of exemption (d). ... [the AGO] is claiming only exemption (f), an indication that the investigation is over and the responsive records withheld should be produced.” 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 release to the public of the records at issue, premature to the conclusion of the review and any other enforcement action, would prejudice

Hanne Rush, Esq. SPR23/2941 Page 3 December 20, 2023 effective law enforcement by: 1) revealing the nature and course of our review of the “cashless Fenway” matter and divulge legal and other strategies and sources of information, thereby chilling the cooperation of witnesses/potential witnesses, including the target entity; 2) providing the target entity with a roadmap to the AGO’s legal and enforcement strategies, placing the AGO at a disadvantage during this open review, as well as for similar investigations in the future; and 3) affording an opportunity for interference with the review/investigation being conducted by law enforcement. For these reasons, the AGO maintains that it would not be in the public interest to disclose these records under G.L. c. 4, § 7, cl. 26(f). Further, to confirm or deny the existence of or provide any more specificity about such records would compromise the AGO’s law enforcement responsibilities to the same extent as disclosing the records themselves, and therefore would undermine the protections afforded by the public records exemptions.” Based on the AGO’s response, it is unclear which records the AGO possesses, if any, that it intends to withhold under Exemption (f) of the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). It is additionally uncertain whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Conclusion Accordingly, the AGO is to provide Mr. Herman with a response to the request, provided in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman