Lucas Uhl v. Everett, City of - Solicitor's Office (SPR 20252495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2025 SPR25/2495 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 01702 Dear Attorney Mejia: I have received the petition of Lucas Uhl, Esq., of Boston Globe Media Partners, LLC, appealing the response of the City of Everett (City) to a request for public records made by Joey Flechas, of the Boston Globe. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On August 6, 2025, Mr. Flechas requested, “... digital copies of any and all communications sent between January 1, 2022 and the date of this request between the Everett City Council, Mayor’s Office, all city departments (listed here ... boards and commissions (listed here ...) to any U.S. Attorney’s Office and FBI office in response to a federal subpoena.” The City responded on August 19, 2025. Unsatisfied with the response, Attorney Uhl petitioned this office and this appeal, SPR25/2495, 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

Colleen Mejia, Esq. SPR25/2495 Page 2 September 8, 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. The City’s August 19th Response In its August 19, 2025 response, the City cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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. 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.

Colleen Mejia, Esq. SPR25/2495 Page 3 September 8, 2025 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 to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its August 19th response, the City argues the following under Exemption (f): It is well settled both state and federal law that certain records held by public entities are exempt from disclosure. MGL c. 4 §7 twenty sixth (f) 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”. The requested federal subpoena(s) served on the City would fall under this exemption. It is in the City’s best interest, as well as the public at large, not to disclose any information as it may impede with a federal criminal investigation. Disclosing such information would so prejudice the integrity of an effective criminal investigation, therefore public interest. Based on the City’s response, I find the City must identify the records in its possession that are responsive to the request. To deny access to a record or portion of 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). Further, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to the ongoing investigation described by the City in its response. Further, the City did not demonstrate how disclosure 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). In

Colleen Mejia, Esq. SPR25/2495 Page 4 September 8, 2025 addition, the City must explain whether segregable portions can be provided. 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). The City must clarify these matters. 5 U.S.C. § 552(b)(7) The City further cites the United States Code, 5 U.S.C. § 552(b)(7), to exempt the requested records. In support, the City indicates, “[u]nder this federal law, releasing any records could hinder the investigation. Since the City is not privy to the nature of the subpoena, it cannot determine to what extent production of the requested documents would interfere with the enforcement proceedings, constitute an unwarranted invasion of privacy, disclose the identity of a confidential informant, disclose techniques or procedures of law enforcement investigations. Perhaps this is a question better posed to the United States Attorney.” 5 U.S.C. § 552(b)(7) states in pertinent part as follows: This section does not apply to matters that are ... records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ... Based on the City’s response, it is unclear how the above reference statute permits it to withhold the requested records. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Attorney Uhl 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. Attorney Uhl may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Colleen Mejia, Esq. SPR25/2495 Page 5 September 8, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Lucas Uhl, Esq.