Kriegman, Esq., Katherine v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20150367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 9, 2015 SPRlS/367 Mr. Erick G. Cipau, Esq. Secretary of the Commonwealth Securities Division One Ashburton Place, 17th Floor Boston, MA 02108 Dear Attorney Cipau: I have received the petition of Attorney Katherine Kriegman on behalf of Bloomberg and its reporter Zeke Faux appealing the response of the Massachusetts Securities Division (Division) to Mr. Faux's request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Faux requested copies of"all 'OPM Tools' presentations gathered by the Secretary ofthe Commonwealth of Massachusetts from Merrill Lynch as part ofthe Division's investigation referenced in Docket No. E-2014-0002." The Division denied this request, claiming the responsive records may be withheld pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). You also claimed the responsive records may be withheld under 950 C.M.R. 14.413. You provided a supplemental response in a letter dated October 2, 2015. The Public Records Law strongly favors disclosure by creating a presumption that all governmental 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). 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Erick G. Cipau, Esq. SPR15/367 Page Two November 9, 2015 added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In your initial response to Mr. Faux, you stated the responsive records are "nonpublic investigatory materials" pursuant to Exemption (f) and 950 C.M.R. 14.413. You provided language from both and explained that under the Massachusetts Uniform Securities Act and 950 C.M.R. 14.413, the Division will generally not publish or make available "[i]nvestigatory materials necessarily received or compiled out of the public view by employees of the Division, 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." 950 C.M.R. 14.413(A). In your October 2, 2015 letter, you provide additional information regarding the Division's denial of access to the requested records. You claim that disclosing the requested records would prejudice the Division's future law enforcement efforts because it would impair "the Division's ability to gather substantive information necessary for it to conduct effective and efficient investigations ...." You explain that the OPM Tools presentation materials were "received by the Division in response to an inquiry letter requesting relevant information for the purposes of its investigation." You claim certain materials related to inactive investigations, such as the requested records, may be withheld in order to promote cooperation between citizens and law enforcement officials. See Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 862-863 (1995); Bougas v. Chief of Police, 371 Mass. 59, 63 (1976). For this reason, you claim the Division's ability to effectively investigate its future cases is put at risk by disclosing the requested records even though the investigation in this matter has concluded. You also include language from 950 C.M.R. 14.413(C). Specifically, you state "the Division should not release certain information received into its custody with the request that it not be disclosed such as ' [s ] upplemental materials, filed at the request of the Division, which are deemed to have been filed in confidence or to be confidential at the request of the registrant or person who has filed such materials, including, but not limited to, trade secrets, contracts, commercial information, and financial information provided to the Division' 950 [C.M.R.] 14.413(C)." You state the information sender in this case, Merrill Lynch, asserted that the requested information is confidential and proprietary. I find the Division has explained how disclosure of the requested records would prejudice the Division's future law enforcement efforts by impairing its ability to gather substantive information necessary for it to conduct effective and efficient investigations. As a result, I find the Division has met its burden of explaining with specificity how Exemption (f) and 950 C.M.R. 14.413 apply to withhold the responsive records. Whereas the Division has properly withheld the responsive records, I will consider this appeal closed.

Mr. Erick G. Cipau, Esq. SPR15/367 Page Three November 9, 2015 Superv sor of Records cc: Ms. Katherine L. Kriegman, Esq.