Tipton, London v. Division of Occupational Licensure (SPR 20261058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2026 SPR26/1058 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[.]” Previous Appeal The requested records were the subject of a previous appeal. See SPR26/0592 Determination of the Supervisor of Records (March 4, 2026). In my March 4th determination, I ordered the Division to demonstrate how disclosure of any portion of the responsive records would be prejudicial to the ongoing investigation and identify the records it intends to withhold. The Division responded on March 20, 2026. Unsatisfied with the Division’s response, Ms. Tipton petitioned this office and this appeal, SPR26/1058, 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 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 SPR26/1058 Page 2 March 31, 2026 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. Current Appeal In her appeal petition, Ms. Tipton contends: The Division claims that disclosure would “prejudice the Division’s ability to carry out effective law enforcement functions by alerting respondents to investigative activity”. However, the Division explicitly states that the ten complaints involve matters currently “being prosecuted internally” and “in settlement negotiations”. … Consumers who file complaints against funeral homes do so with the explicit expectation that the Board will confront the licensee to rectify the issue. The Division has failed to meet its burden of proving that these specific ten complainants were promised, or required, strict anonymity to come forward. The Division’s March 20th Response On March 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 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

Jean McCarthy SPR26/1058 Page 3 March 31, 2026 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: The Division has identified ten (10) responsive complaints within the scope of the request. Each complaint pertains to a matter that remains open and active, including matters currently under investigation, being prosecuted internally, in settlement negotiations, and/or under review by the applicable Board. The Division continues to withhold these records pursuant to G. L. c. 4, § 7(26)(f), which permits the withholding of “investigatory materials necessarily

Jean McCarthy SPR26/1058 Page 4 March 31, 2026 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.” As recognized by the Supreme Judicial Court, this exemption is intended, in part, to prevent premature disclosure of the Commonwealth’s case, protect confidential sources of information, and encourage individuals to speak freely with investigators. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). In this instance, disclosure of the requested complaints would interfere with ongoing internal enforcement matters by revealing the existence, scope, and nature of active investigations. As contemplated by Exemption (f), such disclosure would likely prejudice the Division’s ability to carry out effective law enforcement functions by alerting respondents to investigative activity and undermining the integrity of pending matters. Disclosure would also create a chilling effect on the willingness of individuals to provide information to the Division. The determination recognizes that Exemption (f) protects records where confidentiality is necessary to ensure that individuals “will speak openly about matters under investigation.” The responsive records contain information voluntarily provided by private individuals and/or entities, including details that directly or indirectly identify complainants or other potential witnesses. In some cases, the identity of the complainant or witness may already be known to the requestor, such that redaction would not adequately preserve confidentiality. The Division has considered whether any reasonably segregable portions of the records may be disclosed. However, due to the nature and context of the complaints, redaction would not sufficiently prevent the identification of complainants or the disclosure of sensitive investigative information. Accordingly, any partial disclosure would still result in the harms Exemption (f) is designed to prevent. Although portions of the responsive records may fall under Exemption (f), based on the Division’s response, it is unclear how all the records may be withheld in their entirety. In particular, it is uncertain how identifying information of complainants or voluntary witnesses cannot be redacted from the responsive records and segregable portions provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Division must clarify this matter. 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

Jean McCarthy SPR26/1058 Page 5 March 31, 2026 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). Sincerely, Manza Arthur Supervisor of Records cc: London Tipton