Kelly Stanisewski v. Canton, Town of - Town Clerk (SPR 20240130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2024 SPR24/0130 Tracy K. Kenney Town Clerk Records Access Officer Town of Canton 801 Washington Street Canton, MA 02021 Dear Ms. Kenney: I have received the petition of Kelly Stanisewski appealing the response of the Town of Canton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 14, 2023, Ms. Stanisewski requested the following: [T]he Police Department and the Boards public records of offenses and their disposition that was indexed according to the License, Manager or assistant manager, server and purchaser involved at [two specified establishments] from 1/28/2022 through 8/15/2023. This is concerning an event that took place on 1/28/2022. The Town responded on December 19, 2023, citing Exemption (f) of the Public Records Law for withholding responsive records, and indicating that the records may be the subject of active litigation. See G. L. c. 4, § 7(26)(f). Unsatisfied with the Town’s response, Ms. Stanisewski 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 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 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

Tracy K. Kenney SPR24/0130 Page 2 January 30, 2024 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. Current Appeal In her appeal petition, Ms. Stanisewski contends that “the Bar/Restaurant is not in litigation.” Further, she contends the following concerning the Town’s claims under Exemption (f) of the Public Records Law: [W]ithholding information on a fine or suspension would not compromise the investigation. Exemption (f) does not create a blanket exemption for all records as the Chief of Police and the Town of Canton are using for their denial. Also to note, a police report may be released if any redactions are needed. The Town’s December 19th Response In its December 19, 2023 response, the Town states the following: As the case is still in litigation, [the Town] must once again advise that the requested information/documentation is protected under the investigatory Exemption (f) of the Massachusetts Public Records Law and cannot be released at this time. Please reach out to the District Attorney’s office with any further questions. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Based on the Town’s response, it is unclear whether there is active litigation concerning the requested records. Specifically, the Town has not provided a docket number referring to the possible litigation discussed in its response, nor explained how the responsive records are the subject of such litigation. See 950 C.M.R. 32.08(2)(b). The Town must clarify these matters.

Tracy K. Kenney SPR24/0130 Page 3 January 30, 2024 Further, please note that a change in the status of any pending litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). 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. The Town is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Town’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 Town did not demonstrate how disclosure of the withheld records “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). See G. L. c. 4, § 7(26)(f). The Town must clarify these matters. Additionally, it is unclear from the Town’s response which specific records the Town intends to withhold. The Town must identify the records, categories of records, or portions of records it intends to withhold under Exemption (f). See G. L. c. 66, § 10(b)(iv).

Tracy K. Kenney SPR24/0130 Page 4 January 30, 2024 Conclusion Accordingly, the Town is ordered to provide Ms. Stanisewski with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Kelly Stanisewski