Bernadette L. Sabra v. Executive Office of Energy and Environmental Affairs (SPR 20242193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2024 SPR24/2193 Read D. Porter, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Porter: I have received the petition of Bernadette L. Sabra, Esq. appealing the response of the Executive Office of Energy and Environmental Affairs (Office/EEA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2024, Attorney Sabra requested, “[a] police report for a boating accident that occurred on July 19, 2024 at approximately 6:40 am at Taunton River, Fall River, Massachusetts. The parties involved were [named individuals].” The Office responded on July 8, 2024. Unsatisfied with the response, Attorney Sabra petitioned this office and this appeal, SPR24/2193, was opened as a result. While this appeal was pending, the Office provided a supplemental response on August 8, 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. 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

Read D. Porter, Esq. SPR24/2193 Page 2 August 16, 2024 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. Current Appeal In his appeal, Attorney Sabra states, “[t]he response on July 8, 2024… lacks any specific supporting information to demonstrate how providing the police report would interfere, affect, or hamper any ongoing investigation. This is a situation where the parties involved in this incident are known to the police and to the parties involved… This is not a situation where the police are still in the process of identifying a potential perpetrator… Further, there is nothing in the police report that reveals any ‘confidential investigative techniques,’ which might be the case with any accident reconstruction report or supplemental report which are not being requested. Those records merely identify the place, time and identify the parties involved, and possibly relate some witness statements. Most of this information was reported in the local news. Thus, the Environmental Police would not be ‘giving away’ anything secretive about investigative techniques or alerting potential suspects.” The Office’s July 8th Response In its July 8, 2024 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested 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

Read D. Porter, Esq. SPR24/2193 Page 3 August 16, 2024 Reinstein, 378 Mass. at 289-290. 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. Id. 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. Under Exemption (f), the Office stated, “these records are not public records and are being withheld. This incident is the subject of an ongoing investigation.” In its August 8, 2024, the Office stated the following: The tragic incident which is the subject of the request occurred on June 19, less than three weeks prior to the EEA response. The investigation was (and remains) ongoing at the time when the response was made by EEA. In particular, the vessel involved sank as a result of the incident and was not recovered until August 1, after the EEA response. MEP’s investigating officer must inspect the vessel as part of the investigation, and this investigation is not yet complete. As fact collection is not complete, the requested records also are incomplete. Providing an incomplete report would jeopardize the investigatory process by prematurely disclosing information that is provisional and hindering the ability of officers to complete their work, follow leads that may be discovered in the course of their work, interview witnesses, record their observations with candor, and determine whether criminal charges may be warranted… The requestor states that the requested records “merely identify the place, time and identity of the parties involved, and possibly relate some witness statements”, but has no basis for this characterization. The appellant may be assuming that MEP Environmental Police Officers produce a report similar or identical to that used by municipal law enforcement responding to traffic collisions. If so, the assumption is not correct, and no such report is produced. MEP is responsible for investigation of boating accidents in the Commonwealth… and its reports include substantive information and are not limited to names, times, identities, and the like. The reports of their investigations may or may not result in a recommendation of criminal charges or other enforcement action. Until the investigation is complete, conclusions about the results of any investigation are

Read D. Porter, Esq. SPR24/2193 Page 4 August 16, 2024 premature. On August 9, 2024, in response to the Office’s August 8th response, Attorney Sabra stated the following: [T]he submerged boat involved has now been recovered in the presence of a Massachusetts Environmental Police (MEP) officer as well as experts retained by my office. This is not yet a request for the results of any inspection by the environmental police. The request made on July 3, 2024 was only for the initial police report, not the photos, inspection report or videos… Further, it is clear at this point that this incident will not result in any criminal charges, begging the questions of what sort of ‘investigation’, if any, the MEP are pursuing… This instant request for the MEP report, even if not complete, does not in any way hinder the completion of the work, whatever that is, of the MEP… There is no suggestion that the owner of the boat, the surviving brother, acted in any way that could be considered “criminal.” Based on the Office’s response, I find the Office must identify the record(s) it possesses that it is withholding from disclosure. Although the Office claims it has an open investigation regarding the requested record, it is unclear how the police report, in its entirety, can be withheld under Exemption (f). The Office did not 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 Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Attorney Sabra 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. Sincerely, Manza Arthur Supervisor of Records cc: Bernadette L. Sabra, Esq.