Paul MacMillan v. Lawrence, City of - Office of the City Clerk (SPR 20243021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2024 SPR24/3021 Timothy P. Houten, Esq. First Assistant City Attorney City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Houten: I have received the petition of Paul MacMillan appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 24, 2024, Mr. MacMillan requested, “the report regarding the POST Investigation authored by [a named individual]…” The City responded on November 6, 2024. Unsatisfied with the response, Mr. MacMillan petitioned this office and this appeal, SPR24/3021, 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. See 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 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

Timothy P. Houten, Esq. SPR24/3021 Page 2 November 19, 2024 custodian must provide the responsive records. The City’s November 6th Response In its November 6, 2024 response, the City cited Exemptions (a) and (f) of the Public Records Law to withhold the responsive record. Current Appeal In his appeal, Mr. MacMillan stated, “[t]he investigation by [a named individual] has been completed and in the possession of the City of Lawrence. I confirmed that with a phone call to [a named individual] that the investigation was concluded before I filed my Freedom of Information Request with the City of Lawrence. Their basis for denial of my legitimate request is weak at best because of a POST investigation. Upon information and belief, Acting Chief… chose not to participate in an investigation and never made any statements to [a named individual] and his fifth amendment has not been violated in any way. The POST commission is conducting their own investigation and I’m assuming will speak directly with Acting Chief…” 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.

Timothy P. Houten, Esq. SPR24/3021 Page 3 November 19, 2024 Under Exemption (a), in its November 6, 2024 response, the City cites G. L. c. 6E, § 8(a)(2), which provides in pertinent part: The division of police standards may initiate a preliminary inquiry into the conduct of a law enforcement officer upon receipt of a complaint, report or other credible evidence that is deemed sufficient by the commission that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6, § 8(a)(2). In its November 6th response, under G. L. c. 6, § 8(a)(2), the City states, “[t]he City will not violate these statutory confidentially provisions or interfere with the POST investigation.” Based on the information provided in the City’s response, it is unclear how the withheld record is the type of record contemplated under the statute cited above. The City must clarify how the above referenced statute specifically or by necessary implication permits it to withhold the record from disclosure. 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

Timothy P. Houten, Esq. SPR24/3021 Page 4 November 19, 2024 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 states, “[Mr. MacMillan’s] request is being denied under [Exemption (f)], which exempts from disclosure investigatory materials necessarily [compiled] out of 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. The report [Mr. MacMillan] seek[s] is subject to an ongoing and active Preliminary Inquiry by POST in Matter No. PI-2024-023.” Although the City claims there is an open investigation regarding the requested record, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is additionally uncertain from the City’s response whether the record contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. 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. MacMillan 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. Mr. MacMillan may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul J. MacMillan Eileen O’Connor, Esq.