Grace Ferguson v. Department of Fire Services (SPR 20240818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2024 SPR24/0818 MaryElizabeth Lynch-Lent, MPA Paralegal/Records Access Officer Department of Fire Services City of New Bedford 133 William Street New Bedford, MA 02740 Dear Ms. Lynch-Lent: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the New Bedford Department of Fire Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 13, 2024, Ms. Ferguson requested, “a list of arson fires that took place between January 1, 2019 and the present, including the date the fire occurred, location of the fire, case status, case disposition, and date of disposition.” The Department responded on March 4, 2024. Unsatisfied with the Department’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/0818, 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. Att’y 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 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

MaryElizabeth Lynch-Lent SPR24/0818 Page 2 April 1, 2024 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 Commission’s March 4th Response In its March 4, 2024 response, the Department produced an excel spreadsheet with redactions pursuant to Exemption (f) of the Public Records Law. Current appeal In her appeal, Ms. Ferguson asserts, “[t]his information is essential to the public’s understanding of whether law enforcement officials are carrying out their duty to investigate fires effectively and efficiently. Even if the department can demonstrate that disclosing the locations of the fires would pose some theoretical harm to their investigations, it is difficult to imagine that such harm would outweigh the public’s interest in disclosure of the information.” 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an

MaryElizabeth Lynch-Lent SPR24/0818 Page 3 April 1, 2024 assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Department advised, ... certain portions of this production have been withheld under M.G.L. c. 4, s § 7, cl. 26(f). Specifically, for arson investigations which remain open and under investigation and for cases pending prosecution, the Department has redacted the addresses and cities/towns where these fires have occurred. It is the Department’s position that the disclosure of investigatory materials related to an ongoing investigation prior to its conclusion could harm ongoing investigation efforts by the Department and/or other investigative entities. In light of these pending investigations, the information you seek is not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f). The Department further stated, “[a]s to the entry on line 491 of the enclosed Microsoft Excel spreadsheet, although this case has been labeled as closed, based on information provided to this office by the State Police Fire and Explosion Investigation Unit, there are pending grand jury proceedings ...” With the exception of information relating to grand jury proceedings, which may be withheld, it is unclear how the balance of the records may be redacted pursuant to Exemption (f). It is unclear from the Department’s response whether the redacted portions constitute confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of the redacted portions 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). Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson with a response to her request, 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. Ferguson may appeal the substantive nature of the Department’s response within ninety (90)

MaryElizabeth Lynch-Lent SPR24/0818 Page 4 April 1, 2024 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson