Grace Ferguson v. Office of the Attorney General (SPR 20252975)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2025 SPR25/2975 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 22, 2025, Ms. Ferguson requested a “... copy of the settlement agreement and any available compliance reports” regarding Fall River Healthcare, a nursing facility operated by the Next Step Healthcare chain. Prior Appeal This request was the subject of a prior appeal. See SPR25/2806 Determination of the Supervisor of Records (October 7, 2025). In my October 7th determination, I found that the AGO provided Ms. Ferguson with a further response on October 7, 2025. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR25/2975, 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. 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

Hanne Rush, Esq. SPR25/2975 Page 2 October 21, 2025 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 AGO’s October 7th Response In its prior response dated September 23, 2025, the AGO provided “twenty-six (26) pages of records that may be responsive to the request.” In its October 7, 2025 response, the AGO cited Exemption (f) of the Public Records Law to withhold the remaining records. Current appeal In her appeal, Ms. Ferguson asserts, “[t]he AGO does not explain how disclosure of the compliance reports would have the impact of ‘chilling the cooperation of the entity in this matter’, presumably referring to Next Step Healthcare as ‘the entity’.” 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

Hanne Rush, Esq. SPR25/2975 Page 3 October 21, 2025 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. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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 October 7th response the AGO states the following: AGO maintains the position that the requested reports are properly withheld from disclosure in accordance with G.L. c. 4, § 7, cl. 26(f), as they are investigatory materials related to a matter that remains open and pending during a compliance period and which, if disclosed at this time while not fully resolved, would reveal confidential investigative techniques, procedures, and sources of information and which would so prejudice the possibility of effective law enforcement that such

Hanne Rush, Esq. SPR25/2975 Page 4 October 21, 2025 disclosure would not be in the public interest. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976). Exemption (f) allows the withholding from public disclosure of such materials necessarily compiled out of the public view by law enforcement when the disclosure “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, cl. 26(f). Because the information exempted from disclosure under exemption (f) is so intertwined within the records, proper redaction would render them fully blackened and meaningless. In this instance, revealing any information from the records, premature to the conclusion of the compliance period and any further enforcement action, would compromise effective law enforcement by: 1) revealing the ongoing nature and course of this pending enforcement matter and divulge legal and other strategies, thereby chilling the cooperation of the entity in this matter; 2) dissuading witnesses/private citizens who require assurances of confidentiality so that they will cooperate with the enforcement matter (the “chilling effect”); and 3) affording an opportunity for interference with the compliance period of an enforcement matter being handled by law enforcement. See Bougas, 371 Mass. at 63. Based on the AGO’s response, I find that to the extent that the AGO claims that disclosure would reveal the course of its ongoing investigation and chill the cooperation of witnesses and private citizens, the AGO may permissibly withhold the requested records pursuant to Exemption (f) of the Public Records Law. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson