Cathy Fergerson v. Plymouth Town Clerk (SPR 20253504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2025 SPR25/3504 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson I have received the petition of Cathleen Ferguson appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2025, Ms. Ferguson requested, “any and all written or email communications sent to or received by the Plymouth Conservation Commission between May 1, 2025 to the present regarding wooden pilings along Saquish Beach.” The Town responded on November 13, 2025 and November 17, 2025. Unsatisfied with the responses, Ms. Ferguson petitioned this office and this appeal, SPR25/3504, was opened as a result. The Town provided a further response on December 2, 2025. 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

Connor Anderson SPR25/3504 Page 2 December 11, 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. Current appeal In her appeal, Ms. Ferguson asserts, “I would like to appeal the redaction of the response (attached) from the Town ... Nowhere on the town or conservation commission websites does it say that complaints are confidential ... The town’s investigation has concluded ... Nowhere does the sender of the email request that this be treated as confidential ... There is no good reason to keep this information redacted.” The Town’s November 13th, November 17th and December 2nd Responses In its November 13, 2025 response the Town stated, “[w]e have received your public Records request for Town of Plymouth. This record is being assigned to appropriate department.” In its November 17, 2025 response the Town provided redacted records pursuant to Exemption (f) of the Public Records Law. In its December 2, 2025 response, the Town provided additional information regarding its redactions under Exemption (f) and stated, “[p]lease see the attached decision regarding redacting the identifying information of complainants specifically related to the Plymouth Conservation Commission in accordance with exemption (f). This decision solidifies the Town’s stance that the redactions in our response were appropriate.” 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.

Connor Anderson SPR25/3504 Page 3 December 11, 2025 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 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 November 17th response, the Town stated, The records have been produced absent minor redactions of information that would identify a voluntary witness/complainant who came forward with respect to the underlying investigation at issue regarding an enforcement matter under investigation by Town Officials. In addition to pertaining to ongoing investigations, exemption (f) has also been held to allow investigative officials, in this case Town officials, to provide an assurance of confidentiality to persons so

Connor Anderson SPR25/3504 Page 4 December 11, 2025 that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1960). For that reason, in this instance, the names, addresses and identifying details of voluntary witnesses or complainants may therefore be withheld from disclosure permanently. Reinstein v. Police Commissioner of Boston, 378 Mass.281, 290 (1979). These redactions have been made to the record only where necessary and no whole pages have been redacted. Based on the Town’s responses, where Town redacted information that would identify a voluntary witness or complainant, I find the Town may properly redact such information pursuant to Exemption (f) of the Public Records Law. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ferguson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Cathleen Ferguson