Bach, Susan v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20140108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April9, 2014 SPR14/108 Ms. Susan L. Bach 31 Dean Road Milton, MA 02186 Dear Ms. Bach: I have received your letter appealing the February 6, 2014 response of the Office of the Attorney General (AGO) to your January 27, 2014 request for records. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2) (explaining appeals process). In 2008 Norman Goldberg requested records from the AGO. Dissatisfied with the response from the AGO, Mr. Goldberg petitioned this office. The prior Supervisor of Records ordered the AGO to produce an index of withheld records to support any exemption claims with respect to records that were withheld from Mr. Goldberg. It is important to note that the determination of the Supervisor of Records did not order the AGO to produce the withheld records. The AGO was ordered to create an index to describe the records it had withheld. See SPR08/006 Determination of the Supervisor ofRecords (April24, 2008); 950 C.M.R. 32.08 (7). In a letter to this office dated May 13, 2008 an Assistant Attorney General explained that the AGO would decline compliance with the order of the Supervisor of Records as "the applicability of the exemptions cited by the AGO to withhold these records from disclosure is now also the subject of active litigation." Attorney General v. Susan L. Bach, C.A. No. 06-0383- G (Suffolk Superior Ct.). It is my understanding that in subsequent litigation the AGO produced an index of withheld records. Goldberg v. Attorney General Martha Coakley, Civil Action No. 2008-02110 (Suffolk County). In a March 31,2014 email to a member of my staffyou stated that you have a copy of this index. In your January 2ih request you sought copies of: 1. The 62+ documents listed in the index prepared by the AGO, and 2. A detailed compilation of expenses the AGO had incurred as a result of a matter you referred to as "the Eckersley Litigation." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Susan L. Bach SPR14/108 Page Two April 9, 2014 Right ofA ccess It is important to note that your personal interest in the subject matter of the records listed in the index does not provide you with any greater right of access than any other individual in the public realm. The Public Records Law does not distinguish between requesters. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requesting party. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). AGO Response In a written response dated February 6, 2014 an Assistant Attorney General in the AGO General Counsel's Office denied Request # 1 for copies of the records identified on the index, citing both the deliberative process and investigatory exemptions to the Public Records Law. G. L. c. 4, § 7 (26)(d), (f). With respect to Request # 2, in the same letter you were informed that the AGO has no responsive records. A record holder's duty to comply with requests for information extends only to records that exist and are in his custody. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). There is a presumption that all government employees perform their duties in an honest and impartial manner. LaPointe v. License Bd. ofWorcester, 389 Mass. 454, 459 (1983) see also Kon6ver Mgt. Corp v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992). I accept that the AGO understood your request and responded to the best of its knowledge. In your appeal to this office you requested an inquiry as to why the AGO would have no records responsive to Request# 2. Such an inquiry is beyond the purview of my authority as Supervisor of Records. Accordingly, whereas the AGO has no responsive records with respect to Request # 2, this portion of your appeal is closed. In Camera Inspections and Submissions ofD ata The Supervisor of Records may require an inspection of requested records in camera during any investigation or any proceeding initiated pursuant to 950 C.M.R. 32.08. The Supervisor of Records may also require the custodian to produce other records and information necessary to reach a determination pursuant to 950 C.M.R. 32.08. Whereas the records responsive to Request# 1 are detailed on the index prepared for the Goldberg litigation, I issued an order dated March 6, 2014 for a copy of the index. The index would be reviewed in camera to assist in my determination as to whether the exemptions claimed by the AGO in the Goldberg matter were still applicable in response to your request.

Ms. Susan L. Bach SPR14/108 Page Three April 9, 2014 The AGO complied with my order and provided a copy of the index for my review with a letter dated March 14, 2014. I wish to thank the AGO for its cooperation. The index will be returned to the AGO and no copies will be retained by this office. Exemption (f) In a March 24, 2014 telephone conversation with an attorney on my staff, an Assistant Attorney General reaffirmed the exemptions claimed by the AGO in denying your request for records. The AGO withheld all the records listed on the index pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). Exemption (f) may be used by law enforcement and investigative officials to encourage individual citizens to come forward and speak freely concerning matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281, 290 n.18 (1979). The withheld records consist of communications between the AGO, complainants and witnesses whose statements and information are related to an investigation by the AGO. Ordinarily this office would advise custodians to redact where necessary and provide the balance of the records. This is not possible in this instance as it is likely that many if not all of the parties identified in the withheld records are known to you. In your communications to this office you stressed that there is no ongoing investigation of which you are aware; therefore the AGO should not be permitted to withhold the records listed on the index under Exemption (f). A records custodian may withhold communications that include information from witnesses, complainants and informants even in the absence of an open investigation. It is, therefore, not relevant whether there is an open or ongoing investigation, as there is a continued benefit to law enforcement if it is able to maintain confidentiality with respect to such voluntary communications. I find that the AGO has properly withheld the records listed in the index pursuant to Exemption (f) of the Public Records Law. As such, I decline to opine upon the AGO's Exemption (d) claim. This administrative appeal is closed. Supervisor of Records cc: Office of the Attorney General Mr. Michael Maresco