David Priest v. Marlborough, City of (SPR 20241595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2024 SPR24/1595 Steven Kerrigan City Clerk City of Marlborough 140 Main Street Marlborough, MA 01752 Dear Mr. Kerrigan: I have received the petition of David Priest appealing the response of the City of Marlborough (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2024, Mr. Priest requested: [D]ocumentation and records concerning the investigation initiated following [a named individual]’s complaint filed on March 18, 2022, alleging discriminatory behavior by [a named individual] towards female and minority officers… [1.] Documentation related to the complaint filing and correspondence with Human Resources representative . . . [2.] Records indicating the date of initiation of the investigation within the specified timeframe [3.] Any communication or documentation indicating progress or updates on the investigation during this period. [4.] Copy of his/her complaint to serve as a receipt verifying that such complaint has been received and is being processed [5.] Notification of Charges/Allegations Form received by [a specified individual] Prior Appeal This request was the subject of a prior appeal. See SPR24/1299 Determination of the Supervisor of records (May 10, 2024). In my May 10th determination, it was my understanding that the City intended to provide a further response to Mr. Priest to address his records request. The City responded on May 24, 2024. Unsatisfied with the response, Mr. Priest petitioned this office and this appeal, SPR24/1595, was opened as a result. 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

Steven Kerrigan SPR24/1595 Page 2 June 10, 2024 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s May 24th Response In its May 24, 2024 response, the City cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Priest states, “I specifically sought documents involving only law enforcement officers, including audio recordings of interviews with members of the Marlborough Police Department... Their response… indicates that the release of such records would compromise the identity of a complainant… I assert that the City’s withholding of these documents is both unwarranted and obstructive…” 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

Steven Kerrigan SPR24/1595 Page 3 June 10, 2024 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 289-290. Under Exemption (f), the City stated, “[a]s to your request for records that relate to a complaint made by a specified Marlborough Police employee to Human Resources, if the city holds such record(s) they cannot be disclosed or redacted as the release of such records would make it impossible for the records custodian to protect the identity of the already specified complainant. Therefore, the city will withhold any possible responsive records under exemption (f) of the Massachusetts Public Records Law. To the extent [Mr. Priest’s] request refers to a MPD internal affairs investigation, there are no responsive records.” Based on the City’s response, it is unclear what type of records it possesses that it withheld from disclosure. 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 . . .”). Therefore, the City must identify the type of records it has in its possession that it is withholding under Exemption (f). Further, it is unclear how the records, in their entirety, can be withheld under Exemption (f). Additionally, the City did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “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 these matters. Conclusion Accordingly, the City is ordered to provide Mr. Priest with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Steven Kerrigan SPR24/1595 Page 4 June 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: David Priest Jason Grossfield, Esq.