Colman Herman v. Attorney General's Office (SPR 20233050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/3050 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, “... copies of any and all internal and external communications related to the response of the office of the attorney general to the Globe regarding this . . . article” involving cashless fenway, td garden and gillette. The AGO responded on December 18, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/3050, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR23/3050 Page 2 January 4, 2024 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 produced twenty-one (21) pages of records that may be responsive to the request and redacted portions of the records pursuant to Exemptions (d) and (f) of the Public Records Law. Current appeal In his appeal, Mr. Herman asserts that the AGO’s response “... lacks the specificity required by the public records law for claiming an exemption.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

Hanne Rush, Esq. SPR23/3050 Page 3 January 4, 2024 In its response, the AGO asserted that it “... redacted portions of the records in accordance with G.L. c. 4, § 7, cl. 26(d), insofar as they constitute intra-agency (internal) communications that possess a deliberative or policymaking character and relate to an ongoing deliberative process. Specifically, the redacted information consists of those discussions between and among Assistant Attorneys General (AAsG) and other AGO staff concerning the status of ongoing enforcement matters and/or how public inquiries on the pending matters should be handled. This information ultimately reflects an ongoing deliberative process, namely the AGO’s position with respect to pending consumer protection enforcement matters, which continues to evolve and does not terminate on the date a particular enforcement action is or is not taken. The disclosure of this information would taint this policymaking process primarily by inhibiting the candid thinking that results in reasoned and legally defensible courses of action now and in the future.” The AGO is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the AGO must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is additionally uncertain what deliberative process remains ongoing. The AGO must clarify these matters. 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.

Hanne Rush, Esq. SPR23/3050 Page 4 January 4, 2024 In its response, the AGO advised that “... small portion of the redacted internal discussions constitute investigatory information, under G.L. c. 4, § 7, cl. 26(f), that is necessarily compiled out of the public view, the disclosure of which would reveal confidential investigative strategies and techniques about pending consumer protection enforcement matters and which would so prejudice the possibility of effective law enforcement, both currently and in the future, that such disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). For these reasons, the AGO maintains that it would not be in the public interest to disclose the redacted information under G.L. c. 4, § 7, cl. 26(d) & (f).” To the extent the AGO claims that the redacted “. . . discussions constitute investigatory information” and that disclosure would so prejudice the possibility of effective law enforcement, by “reveal[ing] confidential investigative strategies and techniques about pending consumer protection enforcement matters[,]” I find the AGO may permissibly withhold such portions from disclosure under Exemption (f). 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