Keith Lyons v. Boxborough, Town of - Town Clerk (SPR 20242060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2060 Rebecca J. Harris, PhD. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Keith Lyons appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2024, Mr. Lyons requested a copy of “… the IA completed and sustained for former officer ….” Previous Appeal This request was the subject of a previous appeal. See SPR24/1800 Determination of the Supervisor of Records (July 3, 2024). In my July 3rd Determination, I ordered the Town to provide Mr. Lyons with a response to his request. The Town provided a response on July 18, 2024, denying the request and claiming the responsive records are exempt from disclosure under Exemptions (a) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Town’s response, Mr. Lyons petitioned this office and this appeal, SPR24/2060, 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. 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

Rebecca J. Harris, PhD. SPR24/2060 Page 2 August 2, 2024 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 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 Town’s July 18th Response In its July 18, 2024 response, the Town states that it has withheld certain records pursuant to Exemptions (a) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (f). The Department cited the POST Commission Regulations, 555 C.M.R. 1.03, as the basis for withholding the requested records. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.” 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. In its response, the Department cites the POST Commission Regulations, 555 C.M.R. 1.03, which provides in pertinent part:

Rebecca J. Harris, PhD. SPR24/2060 Page 3 August 2, 2024 Confidentiality of Preliminary Inquiries. All proceedings and records relating to a preliminary inquiry by the division of standards, including any internal review to determine whether there is sufficient credible evidence to initiate a preliminary inquiry, shall be kept strictly confidential pursuant to M.G.L. c. 6E, § 8(c)(2) and M.G.L. c. 4, § 7, twenty-sixth, the exemptions to the definitions of public records… In its response, the Town states, “[t]o the best of the Town’s knowledge, at this time, a public hearing has not yet been conducted by POST in the matter, and thus, it is the position of the Town that the requested internal affairs report cannot be provided at this time pursuant to both exemptions (f) and (a) of the Public Records Law, given the pendency of the POST matter.” The Town’s response did not explain how the responsive records are exempt from disclosure under the cited regulation. Specifically, it is unclear how these records are “relating to a preliminary inquiry by the division of standards…” Accordingly, the Town must clarify how the responsive records constitute the type of records contemplated in 555 C.M.R. 1.03. 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 response, the Town asserts “that the internal affairs report that you are seeking directly relates to a matter that, to the best of the Town’s knowledge, is currently pending before the Peace Officer Standards and Training Commission (“POST”). Publicly releasing the internal affairs report prior to the conclusion of POST’s ongoing review could prejudice that matter and

Rebecca J. Harris, PhD. SPR24/2060 Page 4 August 2, 2024 as such, the documents may be withheld in their entirety pursuant to Exemption (f) of the Public Records Law.” The Town’s response did not provide supporting information on how the investigative process is ongoing. It is uncertain how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Consequently, I find the Town did not meet its burden of demonstrating how the requested records are exempt from disclosure under Exemption (f). It is additionally uncertain how segregable portions cannot be provided. 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 Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide a response to Mr. Lyons, in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Keith Lyons