Thomas V. Ralph v. Boxborough, Town of - Town Clerk (SPR 20240484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0484 Rebecca J. Harris, PhD. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Attorney Thomas V. Ralph appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 21, 2023, Attorney Ralph requested, among other items, the following: Any and all incident reports, police reports, supplemental reports, or memorandum/randa of interviews, notes, employment applications, names of individuals interviewed, background check releases, and emails (internal and external) relative to the background investigation for [a named individual] conducted as part of the background check for Fire Chief during the period dated 06/01/2023 to 07/24/2023. Previous Appeals This request was the subject of previous appeals. See SPR23/2058 Determination of the Supervisor of Records (September 13, 2023) and SPR23/2522 Determination of the Supervisor of Records (November 6, 2023). In my November 6th determination, I found that it was unclear how the responsive records could be withheld in their entirety. Subsequently, the Town responded on November 21, 2024, citing Exemptions (a), (b), (c) and (f) of the Public Records Law for redacting responsive records and withholding others. See G. L. c. 4, § 7(26)(a), (b), (c), (f). Unsatisfied with the Town’s response, Attorney Ralph further 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 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

Rebecca J. Harris, PhD. SPR24/0484 Page 2 February 29, 2024 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. 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 Town’s November 21st Response In its November 21, 2024 response, the Town provides “a redacted version of the background investigation records that are responsive to [the] request and cites Exemptions (a), (b), (c) and (f) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(a), (b), (c), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Rebecca J. Harris, PhD. SPR24/0484 Page 3 February 29, 2024 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 93H The Town cites G. L. c. 93H, which provides the following definition: “Personal information” a resident’s first name and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident: (a) Social Security number; (b) driver’s license number or state-issued identification card number G. L. c. 93H, § 1. In its response, under G. L. c. 93H, the Town argues that “to the extent that the enclosed documents contained confidential information such as social security and driver’s license numbers, that information has been redacted pursuant to G.L. c. 93H, as that statute operates as exemption (a).” Based on the Town’s response, I find that the Town has met its burden to redact social security numbers and driver’s license numbers pursuant to G. L. c. 93H, as it operates through Exemption (a) of the Public Records Law. G. L. c. 41, § 97D In its response, the Town cites G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276

Rebecca J. Harris, PhD. SPR24/0484 Page 4 February 29, 2024 G. L. c. 41, § 97D. Under G. L. c. 41, § 97D, the Town states that it “has withheld a confidential police report pursuant to exemptions (a), G.L. c. 41, Section 97D, and (f), and (c) of the Public Records Law, given its content and the privacy rights of third parties (not the candidate for employment) identified in the report and the details of a highly personal nature contained therein which cannot be publicly disclosed, the identity of which is known to the requester’s client.” Based on the information provided in the Town’s response, it is unclear how the withheld police report constitutes the type of record contemplated in G. L. c. 41, § 97D. The Town must clarify this. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed).

Rebecca J. Harris, PhD. SPR24/0484 Page 5 February 29, 2024 In its November 21st response, the Town states that “the Town is continuing to withhold in its entirety a three (3) page attachment to the background investigation report pursuant to exemption (b).” In support of its claim, the Town argues the following: Here, the information and documents that are gathered in connection with the Town’s background checks are not made publicly available regardless of whether or not an individual is hired for a position. The background check information, provided with the authorization of the candidate, is exclusively for the Town’s internal personnel use regarding its internal hiring practices, and the disclosure of such background check processes would impact the Town’s ability to vet potential employment candidates in the future. In this case, the Town submits that publicly releasing the withheld document, even in redacted form, would be contrary to state law and regulations. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985). Moreover, public disclosure of the information would have a chilling effect on future job candidates’ willingness to apply for such positions with the Town due to the fear of having the results of their background investigation being made publicly available, whether they are ultimately hired for the job or not. Thus, one background check document may be withheld in its entirety since it is determined that disclosure of such document would interfere with the proper functioning of the Town, including its Police Department, under Exemption (b). Based on the Town’s response, although portions of the three-page attachment described above may fall under Exemption (b), it remains unclear why the record cannot be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify this. 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

Rebecca J. Harris, PhD. SPR24/0484 Page 6 February 29, 2024 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its November 21st response, under Exemption (f), the Town argues the following: [T]he background investigation documents ... contain information regarding voluntary witnesses and complainants. Exemption (f) permits a record holder to withhold records or portions thereof that would reveal the identity of any such persons to the requester.... Pursuant to that exemption, the Town has redacted from the enclosed records all information that directly identifies a voluntary witness or complainant, as well as any information which, when considered in the document’s surrounding context, would serve to indirectly identify any voluntary witnesses or complainants. Where the Town states that it redacted the identifying information of voluntary witnesses and complainants, I find the Town may properly claim Exemption (f) in redacting such information from the records. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Additional Records; Possession, Custody, or Control In his appeal petition, Attorney Ralph contends the following: Despite being aware of the requirement that emails are public record, the Town of Boxborough is deliberately violating the Public Records Law by not identifying the responsive documents in their possession. The POLICE, BOARD and ADMINISTRATOR must disclose what emails they possess that are responsive to this appeal and either provide them or identify the specific exemption for each

Rebecca J. Harris, PhD. SPR24/0484 Page 7 February 29, 2024 such email being withheld. Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, it is unclear whether the Town possesses additional emails responsive to Attorney Ralph’s request. If the Town does possess additional records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the 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”). Conclusion Accordingly, the Town is ordered to provide Attorney Ralph 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: Thomas V. Ralph, Esq.