Marder, Esq., David v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20150368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 9, 2015 SPRlS/368 Mr. Patrick M. Costello, Esq. Secretary of the Commonwealth Securities Division One Ashburton Place, 17th Floor Boston, MA 02108 Dear Attorney Costello: I have received the petition of Attorney David Marder appealing the response of the Massachusetts Securities Division (Division) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Marder requested transcripts of investigative testimony, along with exhibits, as well as documents produced to the Division during the investigation that led to a specifically identified administrative proceeding. The Division initially 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)(f). The Division 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 1, 2015. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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. Patrick M. Costello, Esq. SPR15/368 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 the initial response to Attorney Marder, the Division stated that the responsive records are "nonpublic investigatory materials" pursuant to Exemption (f) and 950 C.M.R. 14.413. It provided provide 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 the supplemental response dated October 1, you state that records responsive to Attorney Marder's request "fall squarely within the definition of 'investigatory materials' set forth in 950 [C.M.R.] 14.413.'" The term "investigatory materials" includes but is not limited to "all documents, records, transcripts, evidentiary materials of any nature ...w hich pertains to or may disclose, the possible violation by any person of any provision of any statute, rule, or regulation administered by the Division ...." 950 C.M.R. 14.413(B). Further, 950 C.M.R. 14.413 restricts the production of investigatory materials, including those which would interfere with enforcement activities, disclose the identity of a confidential source, or disclose investigative techniques or procedures. See 950 C.M.R. 14.413(A)(l-6). You claim "[a]ny disclosure of the requested transcripts, exhibits, or documents would reveal the investigative techniques of the Division's Enforcement Section ('Enforcement Section'), which would compromise the Enforcement Section's efforts and prejudice its effective enforcement of the Massachusetts Uniform Securities Act." In addition, you state there is a future administrative hearing scheduled for this matter and the premature disclosure of the requested records would prejudice the Enforcement Section's case during the pendency of this hearing. You also claim disclosure of the requested records would prejudice future enforcement actions. See Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). I find the Division has met its burden in explaining how the responsive records are investigatory materials whose disclosure would interfere with enforcement activities and prejudice the possibility of effective law enforcement. 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. Patrick M. Costello, Esq. SPR15/368 Page Three November 9, 2015 cc: Mr. David E. Marder, Esq.