Anthony M. Branch v. Division of Occupational Licensure (SPR 20252460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records September 3, 2025 SPR25/2460 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Anthony Michael Branch appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2025, Mr. Branch requested the following records: [1] All warehouse licenses, certificates of compliance, or other approvals issued to South Coast Moving & Storage, LLC (or any predecessor or related entity) under G.L. c. 105, including: Licensing applications[,] Expiration, suspension, or revocation history[,] Physical address(es) authorized under such licenses[.] [2] Any building inspection reports, fire safety records, or enforcement actions issued by the Department of Public Safety or OPSI regarding either of the above locations from January 1, 2015, to the present. [3] Any public complaints or investigative records relating to the storage, handling, or custody of personal property following court-ordered evictions involving South Coast Moving & Storage, LLC. [4] Any communications between the OPSI and the Plymouth County Sheriff’s Office or the Department of Public Utilities regarding the licensing status or regulatory compliance of South Coast Moving & Storage. The Division responded on August 11, 2025. Unsatisfied with the response, Mr. Branch petitioned this office and this appeal, SPR25/2460, 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 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

Jean McCarthy SPR25/2460 Page 2 September 3, 2025 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 Division’s August 11th Response In its August 11, 2025 response, the Division provided “copies of records responsive to [the] request.” The Division further stated, “[a]dditional responsive documents concern open investigatory matters” and are exempt under Exemption (f) of the Public Records Law. Current appeal In his appeal, Mr. Branch states that, “[the Division] failed to provide the warehouse licensing applications or to state affirmatively that no such applications exist. This omission is significant because the licensing application is the foundational document proving whether South Coast Moving & Storage ever lawfully applied for or obtained a warehouse license under G.L. c. 105.” Mr. Branch also requests that the Division “produce any additional responsive records not yet provided, including building/fire safety reports, public complaints, and communications with OPSI, the Sheriff, and DPU; and [i]f withholding any records, specifically identify each record withheld and the exemption claimed, as required by 950 CMR 32.06(3)(c).” 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).

Jean McCarthy SPR25/2460 Page 3 September 3, 2025 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. 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 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the Division states the following:

Jean McCarthy SPR25/2460 Page 4 September 3, 2025 [a]dditional responsive documents concern open investigatory matters and is exempt from disclosure pursuant to the investigatory exemption of the public records law, which exempts ‘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). Accordingly, the disclosure of such documents could reveal procedures and/or activities specifically related to the investigation that would undermine that investigation. Accordingly, we are withholding such responsive records to your request. Once the pending case is closed, further documents may be available to the public subject to applicable exemptions under the public records law and unless protected by statute or otherwise privileged. Should you wish to request the documents again after the case is closed, you must file a new public record request. Based on the Division’s response, it is unclear how the withheld records constitute investigatory materials. Further, the Division states that the withheld records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Division did not provide supporting information to demonstrate how disclosure of any segregable portion of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear what records the Division possesses that it withheld from disclosure. The Division is advised that 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). The Division must clarify these matters. Conclusion Accordingly, the Division is ordered to provide Mr. Branch with a response to his request, 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. Branch may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Jean McCarthy SPR25/2460 Page 5 September 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Anthony Michael Branch