Jocelyn Jones v. Office of the Attorney General (SPR 20240510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0510 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Jocelyn B. Jones, Esq., of Segal Roitman, LLP, 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 January 23, 2024, Attorney Jones requested: [p]requalification documents minus financial information is a public record. The prequalification must use criteria similar to the trade contractor prequalification. The only information that is exempt is a company’s financial information once received by a public entity it is a public record. I am not asking for Trade secrets [sic]. The AGO responded on February 7, 2024. Unsatisfied with the response, Attorney Jones petitioned this office and this appeal, SPR24/0510, 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 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. SPR24/0510 Page 2 February 29, 2024 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 AGO’s February 7th Response In its February 7, 2024 response, the AGO cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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 AGO asserted, ... we are withholding any records that may be responsive to your request in accordance with M.G.L. c. 4, § 7, cl. 26(f) insofar as they are investigatory materials necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement, by causing a “chilling effect” on individuals and entities from voluntarily cooperating with the AGO’s investigation, that such disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). Here, the AGO requested and received the investigatory materials during the

Hanne Rush, Esq. SPR24/0510 Page 3 February 29, 2024 course of an inquiry into a potential bid protest. Without reviewing such records, the AGO would be unable to properly carry out its enforcement authority under G.L. c. 149 §44. Both current and future bid law enforcement efforts would be compromised by the disclosure of such materials as it would discourage both public agencies and private parties from providing information to our Office in these types of matters. Therefore, these records are appropriately withheld under G.L. c. 4, §7, cl. 26(f). Upon review, it is unclear which records that the AGO intends to withhold under Exemption (f) of the Public Records Law. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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. Further, it is uncertain how the records, in their entirety, contain confidential investigative techniques. The AGO did not provide supporting information to demonstrate how disclosure of any segregagble portion would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. The AGO must clarify if segregable portions can be provided. 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 AGO is requested to clarify. Conclusion Accordingly, the AGO is to provide Attorney Jones with a response to the request, provided in a manner consistent with this order, 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. Attorney Jones may appeal the substantive nature of the AGO’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jocelyn B. Jones, Esq.