Domenic Poli v. Orange, Town of - Town Clerk (SPR 20241862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1862 Nancy Blackmer Town Clerk/Records Access Officer Town of Orange 6 Prospect Street Orange, MA 01364 Dear Ms. Blackmer: I have received the petition of Domenic Poli, of The Greenfield Reporter, appealing the response of the Town of Orange (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 28, 2024, Mr. Poli requested “[t]he town’s cash ledger (or records of invoices paid to the Town) for the Fiscal Year beginning on July 1, 2023.” The Town responded on May 29, 2024. Unsatisfied with the Town’s response, Mr. Poli petitioned this office, and this appeal, SPR24/1862, 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 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. 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

Nancy Blackmer SPR24/1862 Page 2 July 11, 2024 Current Appeal In his appeal petition, Mr. Poli states that “[t]he main purpose for the records request was to review a series of fraudulent payments the town made to an outside party totaling approximately $338,000.” The Town’s May 29th and June 27th Responses In its May 29, 2024 response, the Town cites Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). In an email to this office on June 27, 2024, the Town further elaborates on its claims under Exemption (f) for withholding responsive 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. In its May 29th response, the Town argues that “the fraudulent invoices are not public record per Exemption F.” Additionally, in an email to this office on June 27, 2024, the Town further argues the following: Mr. Poli requested copies of invoices paid for the fiscal year beginning 7/1/2023. During that time frame, there were invoices that were found to be fraudulent and Mr. Poli was told that per the Police Chief, the fraudulent invoices could not be released due to the ongoing investigation by the local Police, the Attorney General, and the FBI.

Nancy Blackmer SPR24/1862 Page 3 July 11, 2024 . . . Exemption (F) allows investigatory materials compiled out of the public view by law enforcement. Disclosure of these materials would be prejudice to effective law enforcement deeming their disclosure not in the public interest. Dissemination of these records at this time would significantly jeopardize a multi- agency on-going investigation. Based on the information provided in the Town’s responses, it is unclear how the responsive records constitute investigatory materials. Further, although the Town explains that the records are involved in an ongoing investigation, the Town did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The Town must clarify these matters. In its May 29th response, the Town suggests a modification of the scope of Mr. Poli’s request, and indicates that it “would provide [Mr. Poli] all other requested invoices, if he in fact wanted them.” This office encourages Mr. Poli and the Town to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Poli with a response to the request, provided 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. Sincerely, Manza Arthur Supervisor of Records cc: Domenic Poli