Jocelyn B. Jones v. Attorney General's Office (SPR 20241852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/1852 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. Prior Appeals The requested records were the subject of prior appeals. See SPR24/0510 Determination of the Supervisor of Records (February 29, 2024) and SPR24/1307 Determination of the Supervisor of Records (May 21, 2024). In my May 21st determination, it was my understanding that the AGO was to provide a further response to Attorney Jones. The AGO responded on June 5, 2024. Unsatisfied with the response, Attorney Jones petitioned this office and this appeal, SPR24/1852, 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 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. SPR24/1852 Page 2 July 24, 2024 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). 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 June 5th response In the AGO’s June 5, 2024 response, the AGO cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. Current appeal In her appeal, Attorney Jones states that the “... response fails to justify the continued withholding of the public records sought by the Foundation for Fair Contracting following the prior determination of the Secretary of State’s Public Records Division. Accordingly, the Secretary of State’s determination should stand and the AGO should turn over the requested records, which are likely to less than a handful of pages long at most.” 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

Hanne Rush, Esq. SPR24/1852 Page 3 July 24, 2024 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 identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the AGO asserted as follows: The requested records constitute a sub-trade subcontractor’s prequalification materials submitted to the AGO during the course of an informal investigation requested by your client, who sought the Bid Unit’s review of the materials to ensure that they complied with the law. The AGO reiterates that it properly withheld the requested records in accordance with G.L. c. 4, § 7, cl. 26(f), 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 also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). Because the exempt information is so interwoven within the text of the records, proper redaction would render them meaningless and therefore, withholding them in their entirety is appropriate. ... One of the Attorney General’s statutory responsibilities is enforcing the Commonwealth’s public construction bidding laws. See G.L. c. 149, § 44H (“[t]he attorney general shall have all the necessary powers to require compliance therewith[.]”). The Bid Unit provides a forum for the resolution of protests regarding public bidding procedures with two primary enforcement mechanisms: (1) it conducts a formal investigatory hearing and makes findings, a process which is public in nature; or (2) as an alternative to the formal bid protest hearing process, an individual/entity may protest a bid by seeking an informal investigation by the Bid Unit, which is an efficient and cost-effective process for ensuring a public construction project is complying with the law. Your client chose option (2), requesting the Bid Unit to conduct an informal investigation of the sub-trade subcontractor’s prequalification materials. Although the public construction bidding laws indeed require much of the public

Hanne Rush, Esq. SPR24/1852 Page 4 July 24, 2024 construction bidding process to be open and transparent to the public, whether the Bid Unit’s informal investigation is publicly available depends on the circumstances. For example, the individuals/entities filing protests with the Bid Unit may seek to remain confidential by the AGO for fear of retaliation. For this reason, the Bid Unit asks the protesting complainant(s) whether their name/identity can be disclosed. Additionally, much like other enforcement efforts at the AGO where there is no statutorily mandated process to demand records from an individual/entity, the Bid Unit cannot conduct an informal investigation without the voluntary cooperation of the parties, including the awarding authority, contractor and its associates. As a result, the target of an investigation often seeks confidential protection of the records submitted to the Bid Unit, asserting that the records constitute proprietary and/or financial information. Here, in an effort to conduct the investigation requested by your client and to carry out its duty to ensure compliance with the public construction bidding laws, the Bid Unit asked the sub-trade subcontractor to voluntarily submit its prequalification materials to the AGO. The sub-trade subcontractor indicated to the Bid Unit and to your client that the records were proprietary in nature and would therefore provide them only to the AGO for purposes of its investigation. Accordingly, the Bid Unit agreed to conduct an “in camera review” of the records. Without an opportunity to review the records, the Bid Unit would have been unable to properly carry out its regulatory and enforcement authority under G.L. c. 149, § 44H. Accordingly, in this instance, disclosing the requested records would compromise effective law enforcement by: 1) revealing materials received during the course of our investigation, thereby discouraging the cooperation of individuals/entities, including sub-trade subcontractors, and placing the AGO at a disadvantage for similar investigations in the future; 2) dissuading sub-trade subcontractors and other individuals who require assurances of confidentiality so that they will cooperate with the investigation (the “chilling effect”); and 3) affording an opportunity for interference of an investigation being conducted by law enforcement. See Bougas, 371 Mass. at 63. For these reasons, the AGO maintains that it would not be in the collective public interest to disclose the investigatory records withheld under G.L. c. 4, § 7, cl. 26(f). Based on the AGO’s response, I find that to the extent that the AGO claims that disclosure would compromise effective law enforcement, discouraging the cooperation of individuals/entities, including sub-trade subcontractors and dissuading sub-trade subcontractors and other individuals who require assurances of confidentiality so that they will cooperate with the investigation (the ‘chilling effect’)[,]” the AGO has met its burden to withhold the requested records under Exemption (f) of the Public Records Law.

Hanne Rush, Esq. SPR24/1852 Page 5 July 24, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jocelyn B. Jones, Esq.