Zabin, Esq., Albert v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20140140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April9, 2014 SPR14/140 Mr. Albert P. Zabin, Esq. Duane Morris, LLP 100 High Street, Suite 2400 Boston, MA 02110-1724 Dear Attorney Zabin: I have received your petition appealing the February 7, 2014 response of the Office of the Attorney General (AGO) to your January 27, 2014 public records request. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2) (explaining appeals process). Specifically, you requested copies of: 1. Deposition transcripts of David Zak and Elizabeth Reed taken in the case brought against David Zak and Loan Modification Group, Inc. and any exhibits in connection with these depositions, and 2. Deposition transcripts of David Zak and Elizabeth Reed and any exhibits in connection with the depositions taken in the United States District Court for the District of Massachusetts case underlying the appeal. Loan Modification Group, Inc. v. Reed, 694 F.3d 145. On February 7, 2014, an Assistant Attorney General in the AGO's Consumer Protection Division denied your request, citing the investigatory and privacy exemptions in the Public Records Law. G. L. c. 4, § 7(26)(c) and (f). I find that an analysis ofExemption (c) is not necessary to this determination. Exemption (f) In a March 24, 2014 discussion, an Assistant Attorney General in the AGO's Office of the General Counsel informed a member of my legal staffthat the AGO is indeed in the midst of an active and on-going investigation and prosecution in the Massachusetts Superior Court, and the responsive records may be used in the litigation. (Commonwealth v. David Zak, et al., Civil Action No. 2211 06624). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Albert P. Zabin, Esq. SPR14/140 Page Two April9, 2014 Exemption (f) provides for 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) Exemption (f) allows investigative officials to withhold materials that compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). I find that, based upon the explanation provided by both Assistant Attorneys General, the AGO may properly withhold any investigatory records at this time pursuant to Exemption (f) of the Public Records Law. Status of the Requester In your February 21, 2014letter to this office, you state that you need the deposition transcripts for use in preparing for a trial at the Massachusetts Commission Against Discrimination. Your status as an attorney representing individuals who have commenced an action against the same defendants that the AGO generally has brought action against, does not provide you or your clients with any greater right of access than any other individual in the public realm. 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 discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. 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). Therefore, it may be preferable for you to seek the withheld records through any discovery process that may be available to you in your administrative action, or through a court order.

Mr. Albert P. Zabin, Esq. SPR14/140 Page Three April9, 2014 Accordingly, whereas the AGO has properly withheld the responsive records pursuant to Exemption (f), your administrative appeal is closed. Supervisor of Records cc: Ms. Mychii Snape, Esq. Ms. Lorraine A.G. Tarrow, Esq.