Wallack, Todd v. Massachusetts Commission Against Discrimination (SPR 20150303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 13 2015 SPRlS/303 Ms. Constance M. McGrane, Esq. General Counsel Massachusetts Commission Against Discrimination One Ashb urton Place, Room 601 Boston, MA 02108-1518 Dear Attorney McGrane: I have received the petition of Todd Wallack of the Boston Globe appealing the February 26, 2015 response of Massachusetts Commission Against Discrimination (Commission) to my administrative order concerning a previous appeal See SPR14/624 Determination of the Supervisor of Records (January 22, 2015). G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). On August 6, 2014, Mr. Wallack requested a copy of the electronic log/database that the Commission utilizes to track complaints filed by individuals that involve workplace discrimination and other issues involving employers. On October 10 and 22, 2014, 2014, the Commission provided Mr. Wallack with several database files for closed cases covering the period of October 1, 2012 through September 29, 2014. The data provided included (1) dates of filing, probable cause issuance, and closure; (2) reasons for closure; (3) identity of complainants and respondents; and ( 4) the type of alleged discrimination. While the Commission provided Mr. Wallack with the electronic log/database of all closed complaints, the Commission denied Mr. Wallack's request for the open (pending or unresolved) cases under Exemptions (a) and (f) of the Public Records Law. On January 22, 2015, I found that the Commission failed to satisfy its burden of specificity to justify denial of access under the Public Records Law. In my January 22, 2015 determination, I ordered the Commission to provide Mr. Wallack with the open case information, or provide a more specific response to explain how Exemptions (a) and (f) apply to withhold the open cases. The Public Records Law strongly favors disclosure by creating a presumption that all governrnental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Constance M. McGrane, Esq. SPR15/303 Page Two August 13, 2015 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In compliance with my administrative order in appeal SPR14/624, the Commission provided Mr. Wallack with a detailed response dated February 26, 2015 regarding your Exemption (a), (c) and (f) claims. You provided this office with a copy of your February 26 response. Mr. Wallack appealed your February response and this office opened the current appeal. Your response explains that the Commission is charged by statute to investigate and remedy instances of discrimination in the Commonwealth under the anti-discrimination statute, G.L. c. 151B. Section five of Chapter 151B describes some ofthe process of investigating claims filed by individuals in the Commonwealth. In addition to the confidentiality provision in the statute, the regulations promulgated by the Commission describe the access to and restrictions of its records. See G. L. c. 151B § 5; see also 804 C.M.R. 1.04. Exemption (a) You informed this office that Exemption (a) allows the Commission to withhold the records of all open and umesolved discrimination complaints. Therefore, Exemption (a) merits consideration. It allows withholding of those records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) The applicable statute that permits the Commission to withhold certain records pursuant to Exemption (a) is G. L. c. 151B § 5. Section 5 of this statute governs the rules and procedures that the Commission follows once a complaint is filed and investigated. It is my understanding that this section of the statute also describes conciliation after a probable cause finding and the public hearing process. Section 5 states in pertinent part: The members of the commission and its staff shall not disclose what has occurred in the course of such endeavors, provided that the commission may publish the facts in the case of any complaint which has been dismissed, and the terms of the conciliation when the complaint has been so disposed of. G. L. c. 151B § 5. Furthermore, the Commission's procedural regulations which you state have been in effect since at least January 1, 1999 narrowly define "public information." Chapter 1. 04( 1) of Title 804 of the Code of Massachusetts Regulations entitled Public Information; request for review states:

Ms. Constance M. McGrane, Esq. SPR15/303 Page Three August 13,2015 ... the record in every charge pending before the Commission shall be confidential and exempt from M.G.L. c. 66 and 66A pursuant to M.G.L. c. 4, § 7(26)(f) ... 804 C.M.R. 1.04(1) Public Information, Request for Review (emphasis added). Mr. Wallack objects to what he believes is the Commissions' change in its interpretation of its statute and regulations, whereas he states that he was provided with information on the requested "pending" complaints in the past. You explained to Mr. Wallack and this office that the Commission has not made a change in policy relative to public records requests, but that the Commission responds to every request in a consistent manner irrespective of the source of the request. Under Massachusetts case law a custodian is permitted to evaluate its response to every request for records. Prior disclosure does not bar subsequent nondisclosure. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Further, you explained that under the Commission's enabling statute, the Commission is authorized to promulgate regulations concerning the process of investigating discrimination complaints. Therefore, not only does the statute expressly state that the process is confidential, but that the regulations define what can be produced as public information and at what time. You maintain that the Commission has made this interpretation clear to the public with a separate link to the Commission's website describing how to obtain public records from the Commission. See G. L. c. 151B, § 3(5); see also Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198 (1981) (administrative agency entitled to deference in the interpretation of its own regulations). Exemption (/) Mr. Wallack also objects to your claim that Exemption (f) allows the Commission to withhold the information on the open cases. Exemption (f), the "investigatory" exemption, 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. However, an investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 290 n.18 (1979).

Ms. Constance M. McGrane, Esq. SPR15/303 Page Four August 13, 2015 You stated that public disclosure about open cases may compromise investigations by tainting evidence or testimony. Disclosure, you state, will have a chilling effect on complainants' and witnesses willingness to come to the Commission and provide evidence relating to the investigations. For example, in employment cases the complainants may be unwilling to come forward if they learn that their identities will become public by filing a complaint with the Commission. You argue that the Commission runs the risk of exacerbating the probability of retaliation from current employers and diminished job prospects for complainants. Increasing this probability is inconsistent with the Commission's mission to eradicate discrimination in the Commonwealth. In his April 21, 2015 letter, Mr. Wallack posits that the Commission already has a remedy within its regulations to protect the identities of the complainants. He posits that the complainants may use a pseudonym to protect their identity or ask the Commission to seal the documents with a protective order. You explained that the regulation Mr. Wallack refers to is a provision for public information of cases that have been determined, not open cases. Your letter states, "after an investigative determination, e.g, a probable cause determination, only the 'charge of complainant and the investigative determination' may be made public." See 804 C.M.R. 1.04(4). Accordingly, whereas the Commission has now satisfied its burden under the Public Records Law and has properly denied Mr. Wallack's request for the data on pending/open cases under Exemption (a), the Commission's regulations and Exemption (f), this appeal is closed. Supervisor of Records cc: Todd Wallack