Joslin Murphy v. Brookline, Town of - Town Counsel (SPR 20252442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 2, 2025 SPR25/2442 Jonathan Simpson, Esq. First Assistant Town Counsel Town of Brookline 333 Washington Street Brookline, MA 02445 Dear Attorney Simpson: I have received the petition of Joslin Murphy appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 18, 2025, June 19, 2025, and June 23, 2025, Ms. Murphy submitted a three- part request for public records. On July 23, 2025, in an attempt to narrow the scope of her previous request, Ms. Murphy submitted a modified request for the following numbered items: [7] ...[C]opies of any and all written communications among or between [an identified individual], members of the Select Board, the Town Moderator, [and three identified individuals] pertaining to any formal or informal ethics related complaints made against me or any other petitioners of the Lebovitz Amendment between March 27, 2025 and June 18, 2025. [8] …[C]opies of the DPW Sanitation Division daily work sheets identifying the daily sanitation personnel and equipment assignments between April 1, 2025 and May 30, 2025. [10] Any and all non attorney-client privileged records referring to, memorializing, or pertaining in any way to any and all written or oral complaints received by [two identified individuals] between March 27, 2025 and June 23, 2025 concerning my conduct as a Brookline Town Meeting member and/or Special Municipal Employee. [12] A copy of the final retainer agreement exchanged between any employee or official of the Town of Brookline and [an identified individual] and/or [an identified individual] pertaining to this matter. 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

Jonathan Simpson, Esq. SPR25/2442 Page 2 September 2, 2025 [14] Copies of any and all appearance of conflict disclosures submitted by the Town Clerk or the Select Board pursuant to G.L. c. 268A s. 23(b)(3) by any employee or Town official in connection with this matter. Previous Petition Ms. Murphy’s initial three-part request was the subject of a previous petition from the Town. See SPR25/1933 Determination of the Supervisor of Records (July 10, 2025). In my July 10th determination, I found the Town had established good cause for a time extension of 30 business days and could assess a fee for segregation and redaction. I also encouraged the parties to communicate to facilitate providing records more efficiently and affordably. Ms. Murphy subsequently modified her request on July 23, 2025, as described above. The Town responded on August 1, 2025. Unsatisfied with the Town’s response, Ms. Murphy petitioned this office and this appeal, SPR25/2442, 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. The Town’s August 1st Response In its August 1, 2025 response, the Town cited Exemptions (d) and (f) of the Public Records Law to withhold records responsive to Items 7, 8, and 10 of the modified request and stated that it possessed no records responsive to Items 12 and 14. In addition, the Town stated, “[w]e do not intend to produce any responsive documents, nor do we need any additional time, nor do we propose any modified fee estimate.”

Jonathan Simpson, Esq. SPR25/2442 Page 3 September 2, 2025 Current Appeal In her appeal petition, Ms. Murphy argued against “the Town’s overly broad application” of Exemptions (d) and (f), as well as “the Town’s failure to provide in its written denial a detailed description of the records,” as they relate to the attorney-client privilege. Upon review of the Town’s August 1, 2025 response, it is my understanding that the Town did not claim attorney-client privilege to withhold the responsive records. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d) of the Public Records Law. DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Under Exemption (d), the Town stated: Responsive documents may also include documents related to a pending investigation, in which you are a subject, that are protected by the work product

Jonathan Simpson, Esq. SPR25/2442 Page 4 September 2, 2025 doctrine, and thus, exemption (d), the deliberative process exemption. Documents related to an internal, or in this case an external, investigation may be protected as attorney work product… As the Town has engaged an external investigator in an ongoing investigation into this matter where you are a subject of the investigation, the Town will not be able to release any records responsive to seventh, eighth, and tenth modified requests due to exemption (d) of the PRL, and the attorney work- product doctrine, as those documents you requested are relevant to that investigation. Based on the Town’s response, it is unclear how all of the records responsive to Items 7, 8, and 10 of the modified request may be withheld under the work product doctrine. It is uncertain how all of the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. The Town also has not demonstrated that all of the withheld information is not factual in nature, nor that the withheld information is interwoven with opinions or analysis leading to opinions. See Id. Further, it is unclear how the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. 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, 378 Mass. at 290 n.18. 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure

Jonathan Simpson, Esq. SPR25/2442 Page 5 September 2, 2025 of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. Under Exemption (f), the Town stated: The exemption (f) allows investigative officials to withhold materials that could compromise investigative efforts, if disclosed. Subjects of an investigation, which you are, as well as targets and witnesses, are generally provided only a brief description of the basis, or predicate, for any investigation in which they may be involved. We have already provided you that predicate in an email… While there are no allegations of any criminal activity in this case, police investigators typically do not share the information you requested with suspects… Furthermore, “[i]nformation relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials.” SPR 2020/009… You are the subject of an ongoing ethics investigation and the documents you requested are relevant to that investigation. As the Town has engaged an external investigator in an ongoing investigation into this matter where you are a subject of the investigation, the Town will not be able to release any records responsive to your seventh, eighth, and tenth modified requests due to exemption (f) of the PRL. The disclosure of these materials would very likely prejudice the possibility of any effective investigation that such disclosure would not be in the public interest…. Although the Town claims that there is an open investigation regarding a matter related to the responsive records, it is unclear how the records responsive to Items 7, 8, and 10 of the modified request may be withheld entirely under Exemption (f). It is uncertain from the Town’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Town has also not sufficiently demonstrated 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). The Town must clarify these matters It is additionally uncertain what records the Town possesses that are responsive to the request. 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). Consequently, the Town must identify the records in its possession that it is withholding under Exemptions (d) and (f).

Jonathan Simpson, Esq. SPR25/2442 Page 6 September 2, 2025 Conclusion Accordingly, the Town is ordered to provide Ms. Murphy with a response to her 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. Ms. Murphy 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: Joslin Murphy