Colman Herman v. Attorney General's Office (SPR 20233047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/3047 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 27, 2023, Mr. Herman requested the following: [1.] The office of Attorney General Andrea Joy Campbell said it has received a trickle of complaints this year ... business/cashless-fenway-gillette-td-boston- calling ... copies of any and all of these ‘complaints’. [2.] The Boston Globe also reported the following yesterday with regard to the cashless payment system. It [the attorney general’s office] responds by sending a warning letter saying the complaint “raises concerns your business is not in compliance” with the law ... business/cashless-fenway-gillette-td-boston-calling ... copies of any and all of these “warning letters”. The AGO responded on December 18, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/3047, 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). 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. SPR23/3047 Page 2 January 4, 2024 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 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 AGO’s December 18th response In its December 18, 2023 response, the AGO identified that it is withholding 33 pages of records responsive to the request. The AGO cited Exemption (f) of the Public Records Law to withhold the responsive records in their entirety. Current appeal In his appeal, Mr. Herman asserts that the AGO’s “... response fails because it lacks the specificity required by the public records law for claiming an exemption [and] the AGO’s response also fails to identify the records, categories of records, and/or portions of records that [it] is withholding.” 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

Hanne Rush, Esq. SPR23/3047 Page 3 January 4, 2024 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 “[i]n a December 11, 2023 letter, we let you know that we were still in the process of searching for, identifying, gathering, and reviewing records that may be responsive to your request and needed more time to complete our review ... in accordance with G.L. c. 4, § 7, cl. 26(f), as [the records] constitute investigative materials related to open matters under review that would compromise effective law enforcement by revealing the substance and narrative of the complaints and prematurely releasing information about the nature and course of our review that, if disclosed, would cause a chilling effect on complainants to speak candidly with law enforcement.” 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