Dana Hourigan v. Mansfield, Town of - Town Clerk (SPR 20251400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1400 Matthew Violette Assistant Town Manager Town of Mansfield 6 Park Row Mansfield, MA 02048 Dear Mr. Violette: I have received the petition of Dana Hourigan appealing the response of the Town of Mansfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 1, 2025, Ms. Hourigan requested, “the full report related to the Dumas v. Doherty case.” Previous Appeal This request was the subject of a previous appeal. See SPR25/1030 Determination of the Supervisor of Records (April 30, 2025). In my April 30th determination, I found that the Town needed to revise its fee estimate. The Town provided a response on May 15, 2025. Unsatisfied with the Town’s response, Ms. Hourigan petitioned this office and this appeal, SPR25/1400, 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 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

Matthew Violette SPR25/1400 Page 2 June 2, 2025 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. Fee Waivers On May 14, 2025, the Town provided Ms. Hourigan with a fee estimate of $250 for the responsive records. Ms. Hourigan paid the fee, and the Town provided redacted records. In her appeal petition, Ms. Hourigan states: I would like your help in leaning into the Town to refund my money since the report was not forthcoming even after I paid, and since the report was an [insincere] attempt to elucidate the public…. Please be advised that G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Additionally, please note that, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In this case, where it appears Ms. Hourigan has paid the fees, and the Town has provided responsive records, I am unable to assist Ms. Hourigan in regard to this aspect of her appeal petition. Current Appeal In her appeal, Ms. Hourigan states: The report that I received was 148 pages, 55 of which were totally blank, and

Matthew Violette SPR25/1400 Page 3 June 2, 2025 most of the rest contain just a few headings and no information. Such massive redaction renders the document useless and denies the purpose of the underlying FOIA request…. I also seek [the] appeal to have the legal team re-redact the document. [An identified individual] is a public figure, not personnel. So this is not an HR matter. Further, she has stated that she’d like the report to be public. So who is benefiting from the delays and massive over-redactions? The taxpayers? The accused? The Town Manager? This is where we could all use your advice and assistance…. The Town’s May 15th Response In its May 15, 2025 response, the Town states it is providing responsive records with redactions under attorney-client privilege and Exemptions (a), (c), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). The Town provides a “redaction log” that states its reasoning for redactions for each page. The Town states under Exemption (f): The Town’s failure to enforce the confidentiality requirement in this Investigation would prejudice the Town. It would undercut the integrity of the Investigation and provide a basis to challenge the findings in the Report. It would subject the Town to privacy-related claims by those individuals who were named and/or provided information to the Investigator after being assured that the Investigation was confidential. It would affect the Town’s ability to conduct further investigations because a complainant, the subject of the complaint and any other individuals asked to provide information would be unwilling to cooperate out of concern that the Investigation Report would not be kept confidential. This would compromise the Town’s ability to investigate and try to resolve a complaint locally, which reduces the likelihood that the complaint will result in costly litigation. In its redaction log, the Town consistently states it made redactions for: [P]ersonnel information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; personnel information, including disciplinary documentation useful in making an employment decision about an employee; preservation of the anonymity of witnesses including by redacting names and materials that might indirectly identify an individual; non-disclosure of investigatory materials; Town policies based on guidelines recommended, if not required, by employment- related state agencies provide that the information in employment-related investigation reports should be treated confidentially; Attorney-Client privilege. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1)

Matthew Violette SPR25/1400 Page 4 June 2, 2025 that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mmgt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. The indices shall include a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. G. L. c. 66, § l0A(a). Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based on its May 15th response, I find the Town has not met its burden in claiming the attorney-client privilege. Specifically, the Town must provide an index comprised of a detailed description of each portion redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Town must clarify whether the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, whether the communications were made in confidence, and whether the privilege as to the communications has been waived. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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

Matthew Violette SPR25/1400 Page 5 June 2, 2025 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. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. 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

Matthew Violette SPR25/1400 Page 6 June 2, 2025 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. 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. Bougas, 371 Mass 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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. In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a), (c), and (f) claims made by the Town to redact the responsive record, the Town must provide this office with an un-redacted copy of the record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Matthew Violette SPR25/1400 Page 7 June 2, 2025 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Additionally, the Town is ordered to provide Ms. Hourigan with a response to the request regarding the claim of attorney-client privilege, 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. Ms. Hourigan may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dana Hourigan Leo Peloquin, Esq.