Tipton, London v. Division of Occupational Licensure (SPR 20260592)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2026 SPR26/0592 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of London Tipton appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2026, Ms. Tipton requested “copies of complaints filed with the funeral board from Sep 2025 - to present, in email format[.]” The Division responded on February 11, 2026 and February 20, 2026. Unsatisfied with the Division’s responses, Ms. Tipton petitioned this office and this appeal, SPR26/0592, 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

Jean McCarthy SPR26/0592 Page 2 March 4, 2026 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 petition, Ms. Tipton contends: … My request is strictly limited to the initial complaints filed with the board. I am not requesting the board’s internal investigative notes, witness interview transcripts, internal communications, or any subsequent investigatory documents generated by the DOL. … an initial complaint is typically submitted by a consumer or third party; it is the catalyst that triggers an investigation, not a material compiled by an investigator out of public view. Releasing a consumer’s initial complaint does not “reveal procedures and/or activities specifically related to the investigation”, as the complaint exists prior to the investigation itself. … To the extent that an initial complaint contains highly sensitive personal information, the DOL is required to redact that specific information rather than withholding the entire document outright. The Division’s February 11th and February 20th Responses On February 11, 2026, the Division acknowledged receipt of Ms. Tipton’s request. On February 20, 2026, the Division stated that it withheld certain records pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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

Jean McCarthy SPR26/0592 Page 3 March 4, 2026 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. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. 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 response, the Division states: Responsive documents concern open investigatory matters and is exempt from disclosure pursuant to the investigatory exemption of the public records law, which 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

Jean McCarthy SPR26/0592 Page 4 March 4, 2026 that such disclosure would not be in the public interest.” G.L. c. 4, § 7(26)(f). Accordingly, the disclosure of such documents could reveal procedures and/or activities specifically related to the investigation that would undermine that investigation. Accordingly, we are withholding such responsive records to your request. Once the pending cases are closed, further documents may be available to the public subject to applicable exemptions under the public records law and unless protected by statute or otherwise privileged. Should you wish to request the documents again after the case is closed, you must file a new public record request. Although the Division claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, relate to the ongoing investigation. It is unclear from the Division’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Division did not demonstrate how disclosure of any portion of the responsive records “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). The Division must explain whether the records can be redacted so that 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 non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is additionally uncertain what records the Division 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 records, categories of records, or portions of the records it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Division must identify the records in its possession that it is withholding under Exemption (f). Conclusion Accordingly, the Division is ordered to provide Ms. Tipton 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. Ms. Tipton may further appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Jean McCarthy SPR26/0592 Page 5 March 4, 2026 Sincerely, Manza Arthur Supervisor of Records cc: London Tipton