Russ Williston v. Lancaster, Town of (SPR 20232945)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2945 Kathleen Rocco Records Access Officer Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russ Williston, appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2023, Mr. Williston requested the following records: At the end of the 11/20/2023 6PM Select Board Meeting, during an agenda item about the “Historical Commission Inventory”, [a named individual] distributed a package to the board. I’d like to request a copy of that packet. The Town provided a response on December 1, 2023. Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR23/2945, 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(d)(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…”); 950 C.M.R. 32.06(3); see 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

Kathleen Rocco SPR23/2945 Page 2 December 20, 2023 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). 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, Mr. Willison states, “1. The record I requested was distributed and examined in a public meeting. 2. The custodian cited the ‘Investigatory Exemption’ but members of the Select Board are not investigatory officials, no criminal investigation was ongoing, and they failed to demonstrate how releasing this information would compromise investigative efforts.” The Town’s December 1st Response In its December 1, 2023 response, the Town cited Exemption (f) of the Public Records Law to withhold the responsive records. 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 289-290.

Kathleen Rocco SPR23/2945 Page 3 December 20, 2023 Under Exemption (f), the Town states, “the requested records involve open and ongoing criminal investigations that must be kept confidential at this time if the investigations are not to be jeopardized.” Although the Town claims it has an open investigation regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is additionally uncertain from the Town’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Town did not provide any supporting information to demonstrate how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Williston with a response to the request, provided in a manner consistent with this order, 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: Russ Williston