Grace Ferguson v. Department of Fire Services (SPR 20241404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2024 SPR24/1404 MaryElizabeth Lynch-Lent, MPA Paralegal/Records Access Officer Department of Fire Services P.O. Box 1025 - Stow Road 133 William Street Stow, MA 01775 Dear Ms. Lynch-Lent: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the 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 April 19, 2024, Ms. Ferguson requested, “... investigative reports, property insurance loss reports, and referrals to district attorneys or other law enforcement agencies for the following [14 identified] case numbers.” The Department responded on May 3, 2024. Unsatisfied with the Department’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/1404, was opened as a result. Upon review of the petition, it appears Ms. Ferguson is only appealing the Department’s response pertaining to the two withheld reports. 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 SPR24/1404 Page 2 May 22, 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 Department’s May 3rd Response In its May 3, 2024 response, the Department produced, in redacted form, “... [12 investigative reports] responsive to your request that are in the possession of the Massachusetts State Police, Fire and Explosion Investigation Unit, a division of the Department of Fire Services.” Also, the Department withheld two investigative reports from disclosure under Exemptions (a), (c), and (f) of the Public Records Law. It is my understanding that the Department had clarified that it did not possess “. . . insurance loss reports, and referrals to other law enforcement agencies.” Current appeal In her appeal, Ms. Ferguson contends: When some records are exempt from disclosure, the public records law requires custodians to release any segregable portions of the records that do not contain exempt information. The department’s response does not make it clear why report 2021-117-524 must be withheld in its entirety and cannot be released in a redacted format. . . . The department does not cite any law that explicitly requires the withholding of fire investigation reports involving juveniles. Rather, the department’s response relies on laws that prohibit the release of information about minors from other types of records. The department cites a previous Supervisor of Records opinion that applied the protections of those laws to motor vehicle accident reports, but in that case the Supervisor was only upholding redaction of identifying information about minors, not the withholding of records in their entirety. Therefore, the department’s response does not demonstrate that there are no segregable portions of report 2021-117-524 that could be released. Report - 2021-117-524 In its response, the Department indicated that it withheld this report under Exemptions (a) and (c) of the Public Records Law. The Department explained: . . . in regard to your request for a report on . . . Tinkham Street, New Bedford, Massachusetts, the Department has identified a State Police Report (2021-117- 524) pertaining to your request. Upon review, the Department denies your request for records as such records are exempt from public disclosure under the

MaryElizabeth Lynch-Lent SPR24/1404 Page 3 May 22, 2024 provisions of G.L. c. 4, §7 cl 26 (a) and (c). As you may know, G. L. c.4, §7 cl. 26(a) exempts from public disclosure, records which are specifically or by necessary implication exempt from public disclosure. In this instance, the Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure. For instance, the provisions of G.L. c. 119, §§1-84, relative to care and protection of children proceedings, specifically prohibit the release of information relating to juveniles; G.L. c. 71, §34D (2002 ed.) permits the Board of Education to adopt regulations limiting access to student records; G.L. c. 276, §100B permits the Commissioner of Probation to seal records relative to child delinquency matters; G.L. c. 120, §21 permits the Department of Youth Services Records to withhold records of a child delinquency commitment; G.L. c. 209A, §8 deems 209A records relating to minors as confidential and not subject to public release; and G.L. c. 51, §4 prohibits municipal voter registrars from disclosing the names of minor children aged 3-16 to the public. The Supervisor of Public Records has clearly stated that “[b]y enacting such legislation, the Legislature [has] recognized the importance of protecting the privacy of minor children.” See Opinion No.: SPR05/007 (upholding the redaction of identifying information concerning minor children whose names appeared in motor vehicle accident report since disclosure of minors’ names sufficiently implicate privacy concerns.). See also, G.L. c. 4, §7, cl. forty eight (48) specifically defines a minor as “any person under eighteen years of age.” Accordingly, given the nature of the records and the involvement of juvenile(s) as involved parties, the Department denies your request for this report. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.”

MaryElizabeth Lynch-Lent SPR24/1404 Page 4 May 22, 2024 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 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. Based on the Department’s response, it is unclear how the above referenced statutes, either specifically or by necessary implication permit the Department to withhold the requested report from disclosure. Please be advised that for Exemption (a) to apply, said statute(s) must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Department must clarify this matter. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Based on the Department’s response, it is unclear how this report, in its entirety, contains intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department

MaryElizabeth Lynch-Lent SPR24/1404 Page 5 May 22, 2024 did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Further, although portions of the responsive record may fall within Exemption (c), it is unclear how the record can be withheld in its entirety. Particularly, it is uncertain how identifying information concerning minor children cannot be segregated from the report so that non-exempt portions can be provided. See Reinstein, 378 Mass. at 289-90 (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 Department must clarify these matters. Report - 2022-117-262 In its response, the Department stated, “. . . in regard to your request for a report on . . . Prospect Street, Dartmouth, Massachusetts, the Department has identified a State Police Fire Investigation Unit report (2022-117-262) pertaining to your request. However, according to information provided to this office by the Bristol County District Attorney’s Office, this incident remains the subject of an on-going prosecution. In light of the status of this matter, the report(s) you seek is not subject to public disclosure at this time pursuant to G.L. c. 4, §7, cl. 26 (f) (investigative exemption).” 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. Although the Department claims there is an open investigation regarding this report, it is

MaryElizabeth Lynch-Lent SPR24/1404 Page 6 May 22, 2024 unclear how the report, in its entirety, can be withheld under Exemption (f). It is not clear from the Department’s response whether the report contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any portion of the responsive report “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) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson