Anastasia E. Lennon v. New Bedford, City of - Office of The City Solicitor (SPR 20240487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0487; SPR24/0488 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Anastasia E. Lennon, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2024, Ms. Lennon requested the following records for the period “Jan. 1, 2024 to Jan. 25, 2024”: [1.] All emails between (to and/or from) [identified individuals], including all email attachments, from Jan. 24, 2024. The responsive email(s) may or may not include other recipients. [2.] All emails between (to and/or from) [identified individuals], including all email attachments. The responsive emails may or may not include other recipients. I request that this request is processed separately from my other one, which only seeks email(s) dated Jan. 24, 2024. The City responded on February 9, 2024. Unsatisfied with the City’s response, Ms. Lennon petitioned this office and these appeals, SPR24/0487 and SPR24/0488, were 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

Nicholas DeMarco, Esq SPR24/0487; SPR24/0488 Page 2 February 27, 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). 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 City’s February 9th Response In its February 9, 2024 response, the City stated that it had identified records, and denied the request as being exempt from production pursuant to Exemption (f) of the Public Records Law. 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. In its response, the City asserted: The Department has withheld the above referenced records pursuant to G.L. c. 4, § 7(26)(f)... these records relate to matters that are currently under investigation by the Department. Disclosure to the public of materials and other information prior to the investigation’s formal conclusion would potentially compromise the investigation, as the investigative techniques, procedures, and sources of information would be made known prior to a final rendering. This,

Nicholas DeMarco, Esq SPR24/0487; SPR24/0488 Page 3 February 27, 2024 in turn, would prejudice the possibility of the Department to investigate in an impartial and confidential manner as well as diminish its ability to conduct effective law enforcement. As this disclosure, and the potential outcomes of this disclosure, would not be in the public’s interest, the Department has withheld this information accordingly. Although the City 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 unclear from the City’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not demonstrate how disclosure of any segregable portion 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 City must clarify whether segregable portions can be provided. As a result, I find that the City did not satisfy its burden in responding to this records request. Conclusion Accordingly, the City is ordered to provide a response to Ms. Lennon, 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. Ms. Lennon may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anastasia E. Lennon