Richard Murphy v. Brookline, Town of - Town Counsel (SPR 20252504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2025 SPR25/2504 Joe Callanan, Esq. Town Counsel Town of Brookline 333 Washington Street Brookline, MA 02445 Dear Attorney Callanan: I have received the petition of Richard 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 27, 2025, Mr. Murphy requested, “…a copy of the complaint that was made against me in connection with [an identified] matter including the date and to whom it was made, along with references to the law(s) or Town policy(ies) that I am alleged to have violated.” The Town responded on July 31, 2025. Unsatisfied with the Town’s response, Mr. Murphy petitioned this office and this appeal, SPR25/2504, 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. 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

Joe Callanan, Esq. SPR25/2504 Page 2 September 5, 2025 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 July 31st Response In its July 31, 2025 response, the Town cited Exemption (f) of the Public Records Law to withhold the responsive records. In addition, the Town suggested Mr. Murphy schedule an interview with the identified attorneys investigating the referenced matter. Current Appeal In his appeal petition, Mr. Murphy stated, “[the Town’s] response is past the due date for a response and does not meet the requirements of the investigatory exemption.” 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 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

Joe Callanan, Esq. SPR25/2504 Page 3 September 5, 2025 enforcement activities. Bougas, 371 Mass. at 62. Under Exemption (f), the Town stated: Subjects of an investigation, as well as targets and witnesses, are generally provided only a brief description of the basis for any investigation in which they may be involved. We provided you with that description... During your interview with the investigator, she may provide you with additional information, but any such offer would be situation-specific and at the discretion of the investigator. This practice, which is the generally accepted standard for conducting investigations, is similar to how police officers investigate crimes. While there are no allegations of any criminal activity in this case, police investigators typically do not share the information you requested with suspects… [P]lease note that any responsive documents would be exempt from public disclosure under exemption (f), the investigatory exemption. Although the Town claims that there is an open investigation regarding a matter related to the responsive records, it is unclear how the records may be withheld in their entirety 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 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). 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, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). 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 Exemption (f). Conclusion Accordingly, the Town is ordered to provide Mr. Murphy with a response to his 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. Mr. Murphy may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Joe Callanan, Esq. SPR25/2504 Page 4 September 5, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Richard Murphy