Ryan Higgins v. Mashpee, Town of (SPR 20253336)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3336 Rodney C. Collins Town Manager Town of Mashpee 16 Great Neck Road North Mashpee, MA 02649 Dear Mr. Collins: I have received the petition of Ryan Higgins appealing the response of the Town of Mashpee (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2025, Mr. Higgins requested “[a]ny and all records related to the Investigation that began on January 21, 2025, concerning allegations of discriminatory harassment and retaliation at the Mashpee Fire Department. This includes, but is not limited to:” [1] Findings of said investigation, [2] Reports, [3] Witness statements, [4] Emails, and [5] Any other relevant documentation. Previous Appeal This request was the subject of a previous appeal. See SPR25/3094 Determination of the Supervisor of Records (November 5, 2025). In my November 5th determination, I found the Town had provided Mr. Higgins and the Public Records Division with a supplemental response on November 4, 2025, and considered the matter closed. Unsatisfied with the Town’s supplemental response, Mr. Higgins petitioned this office, and this appeal, SPR25/3336, 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 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

Rodney C. Collins SPR25/3336 Page 2 November 26, 2025 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 November 4th Response In its November 4, 2025 response, the Town cites Exemption (f) of the Public Records Law to withhold the records in their entirety. The Town stated: [T]he “investigation report” that the Town did not produce, pursuant to Exemption (f), is a compilation of witness interview notes made by the private investigator retained by the Town. The document does not contain any findings or recommendations for further action concerning the complaint made about a specifically named non-police employee. In addition, the witness interviews were concerning the Mashpee Fire Department and do not pertain to internal police investigations. Subsequently, the Town contacted the Public Records Division via phone, stating their belief that if the report was released with the witness names redacted, the witnesses could be identified by the content of their statements. The Town stated they are concerned of the chilling effect this could have on witness participation in future investigations. Current Appeal In his appeal, Mr. Higgins states, “[t]he Town has now confirmed that the withheld document consists of a compilation of witness interview notes created by a private investigator retained by the Town in connection with a complaint involving the Mashpee Fire Department. The Town further asserts that this document ‘does not contain any findings or recommendations for further action.’ Respectfully, this response does not satisfy the Town’s obligations under the Public Records Law. My original request sought any and all records relating to the Town’s investigation into that matter — including any findings, reports, witness statements, correspondence, summaries, notes, or other materials created or obtained during that investigation.”

Rodney C. Collins SPR25/3336 Page 3 November 26, 2025 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. 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

Rodney C. Collins SPR25/3336 Page 4 November 26, 2025 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 Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Town to withhold the responsive record, the Town must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Additional Records Further, based on Mr. Higgins’ appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, the Town must clarify whether it possesses any additional records regarding the investigation “. . . including any findings, reports, . . . correspondence, summaries, notes, or other materials created or obtained during that

Rodney C. Collins SPR25/3336 Page 5 November 26, 2025 investigation.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Additionally, the Town is ordered to provide Mr. Higgins with a response regarding whether additional responsive records exist, 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. Higgins 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: Ryan Higgins