Louis H. Matthews v. Department of Fire Services (SPR 20250188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2025 SPR25/0188 MaryElizabeth Lynch-Lent, MPA Paralegal/Records Access Officer Department of Fire Services P. O. Box 1025 - Stow Road 133 William Street Stow, MA 01775 Dear Ms. Lynch-Lent: I have received the petition of Louis H. Matthews appealing the response of the Department of Fire Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2024, Mr. Matthews requested: … information relating to the discovery of any hazardous materials that may have been reported, discovered, detected or released as a result of a fire that occurred at MCI-Norfolk on December 1, 2024, in Unit 1-1 at 2 Clark Street, Norfolk, MA. Please include any order condemning or closing the unit as being uninhabitable, and exactly what the hazard is that is preventing occupancy of the unit or inmates from returning to retrieve their property left in the unit. The Department responded on December 23, 2024. Unsatisfied with the response, Mr. Matthews petitioned this office and this appeal, SPR25/0188, 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

MaryElizabeth Lynch-Lent, MPA SPR25/0188 Page 2 January 30, 2025 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 Department’s December 23rd Response In its December 23, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. Current Appeal In his appeal, Mr. Matthews states, “the Department of Fire Services … [failed] to provide me with the reason for condemning housing unit 1-1 at MCI-Norfolk…. The only information I am seeking is what hazard is present that caused the housing unit to be deemed unsafe.” 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 289-290. Under Exemption (f), the Department states:

MaryElizabeth Lynch-Lent, MPA SPR25/0188 Page 3 January 30, 2025 [u]pon inquiry and after a diligent search of our records, it has been determined that the Hazardous Materials Emergency Response Unit, a division of the Department of Fire Services, did not respond to or investigate any hazardous materials in connection with this fire loss. However, please be advised that according to information recently provided to this office, this incident remains the subject of an on-going investigation by the Massachusetts State Police… It is the Department’s position that the disclosure of investigatory materials related to an ongoing investigation prior to its conclusion could harm ongoing investigation efforts by the Department and/or other investigative entities. In light of the pending investigation, the report(s) you seek are not subject to public disclosure at this time pursuant to G. L. c. 4, § 7 (26)(f)…. In this instance, the Department may continue to pursue their investigation and may interview or re-interview existing or new witnesses. Therefore, the disclosure of certain information during the open investigation and before the statute of limitations has passed, could hinder the Department in its investigative efforts since, for example, additional witnesses or existing witnesses could be added to the investigation and the Department wants to ensure these parties are and/or remain candid…. Accordingly, at this time, the Department declines to provide you with a copy of the report and other associated materials. Upon the conclusion of the aforementioned investigation, the Department will release the records to you, subject to applicable exemptions to the Public Records Law. Based on the Department’s response, stating that “[u]pon inquiry and after a diligent search of our records, it has been determined that the Hazardous Materials Emergency Response Unit, a division of the Department of Fire Services, did not respond to or investigate any hazardous materials in connection with this fire loss…[,]” it is unclear whether the Department possesses records responsive to the request. Therefore, the Department must clarify whether it possesses the requested records, and if it does possesses records, identify the type of records it has in its possession that it is withholding under Exemption (f). G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Further, although the Department claims it that there an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any 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

MaryElizabeth Lynch-Lent, MPA SPR25/0188 Page 4 January 30, 2025 nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Matthews 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: Louis H. Matthews