Colman Herman v. Office of the Attorney General (SPR 20241270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2024 SPR24/1270 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 Colman Herman appealing the response of the Office of the Attorney General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2024, Mr. Herman requested “...copies of any and all communications in the files of the office of the attorney general regarding the cashless payment system. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes.” This request was limited to the time period November 21, 2023 to the present. The Office provided Mr. Herman with a response on April 25, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/1270, 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 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

Hanne Rush, Esq. SPR24/1270 Page 2 May 10, 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 Office’s April 25th Response In its April 25, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records. 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 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

Hanne Rush, Esq. SPR24/1270 Page 3 May 10, 2024 identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Office asserted: ... this is a follow-up to your September 8, November 13 and November 20, 2023 public records requests in which you sought the same types of records. Please be advised that the status of our review has not changed since our responses to your prior requests. Accordingly, we are withholding additional communications that may be responsive to your request that are part of the active and ongoing review of the cashless payment systems matter and are therefore exempt from disclosure in their entirety in accordance with G.L. c. 4, § 7, cl. 26(f). ... the release to the public of the records at issue, premature to the conclusion of the review and any other enforcement action, would prejudice effective law enforcement by: 1) revealing the nature and course of our review of the cashless payment systems matter and divulge legal and other strategies and sources of information, thereby chilling the cooperation of witnesses/potential witnesses, including the target entity; 2) providing the target entity with a roadmap to the AGO’s legal and enforcement strategies, placing the AGO at a disadvantage during this open review, as well as for similar investigations in the future; and 3) affording an opportunity for interference with the review/investigation being conducted by law enforcement. For these reasons, the AGO maintains that it would not be in the public interest to disclose these records under G.L. c. 4, § 7, cl. 26(f). Further, to confirm or deny the existence of or provide any more specificity about such records would compromise the AGO’s law enforcement responsibilities to the same extent as disclosing the records themselves, and therefore would undermine the protections afforded by the public records exemptions. Based upon a telephone conversation between an attorney of the Public Records Division and a representative of the Office, the Office confirmed that the requested records are part of an active and ongoing review of the cashless payment system’s matter. Based on the Office’s response, I find that to the extent that the Office claims that disclosure would reveal the course of its ongoing investigation and chill the cooperation of witnesses/potential witnesses and target companies, the Office has met its burden to withhold the requested records under Exemption (f) of the Public Records Law. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed.

Hanne Rush, Esq. SPR24/1270 Page 4 May 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman