Ryan Kath v. Barre, Town of - Town Administrator (SPR 20243387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2025 SPR24/3387 Tammy Martin Town Administrator Town of Barre 40 West Street, Suite 697 Barre, MA 01005 Dear Ms. Martin: I have received the petition of Ryan Kath, of NBC 10 Boston, appealing the response of the Town of Barre (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 16, 2024, Mr. Kath requested, “... copies of any subpoenas for documents the Town of Barre has received from other agencies in Massachusetts.” The Town responded on November 18, 2024. Unsatisfied with the response, Mr. Kath petitioned this office and this appeal, SPR24/3387, 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

Tammy Martin SPR24/3387 Page 2 January 3, 2025 The Department’s November 18th Response In its November 18, 2024 response, the Town cited Exemption (f) of the Public Records Law to withhold the records. Current appeal In his appeal, Mr. Kath asserts, “[t]here is recent precedent for receiving copies of subpoenas as public records. In 2019, I reported this story after receiving a copy of a Massachusetts Inspector General request for documents from the Town of Hingham via public records request (document attached). And earlier this week, the Boston Globe reported it received a copy of a federal subpoena from a public records request. Both of these municipalities rightly determined that exemption (f) did not apply and would not interfere with ongoing investigations.” 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 states, “[o]ne purpose of exemption (f) is to avoid the disclosure of investigatory information or other process for resolving the matters being investigated, and the prevention of disclosure of confidential investigative techniques, procedures or sources of information. WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 601 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Specifically, the Town has determined that any subpoenas for information from other governmental agencies would be part of investigations that are confidential by law and the

Tammy Martin SPR24/3387 Page 3 January 3, 2025 disclosure of which would likely compromise the efforts of those agencies. That being said, the Town will provide any such records in its possession if you provide written authorization from the agencies that have issued any subpoenas you are seeking.” Based on the Town’s response, it is unclear whether there is an ongoing investigation or how the requested records are related to the investigation. Also, claims that it is involved with an investigatory matter regarding the requested records, it is not clear from the Town’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Town did not demonstrate how disclosure of any segregable portion of the responsive records “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). In addition, it is unclear what types of records the Town possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town withheld responsive records without identifying each of the records. Therefore, the Town must identify the record(s) it has in its possession that the Town withheld under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Mr. Kath 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. Kath may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ryan Kath