Wallack, Todd v. State Ethics Commission (SPR 20150504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords September 25, 2015 SPRlS/504 Ms. Deirdre Roney, Esq. General Counsel State Ethics Commission One Ashburton Place, Room 619 Boston, MA 021 06 Dear Attorney Roney: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the State Ethics Commission (Commission) to his request for public records. G. L. c. 66 § 1O (b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a copy of all Statements of Financial Interest forms (SFI) filed with the Commission for calendar year 2014. By letters dated April 30 and May 5, 2015, you stated that the Commission would provide Mr. Wallack with the SFis, redacted pursuant to a statute and applicable exemptions to the Public Records Law. G. L c. 4, § 7 (26) (a), (c), (o), (p); G. L. c. 268B § 3(d). An electronic copy of the redacted records was provided to Mr. Wallack with a letter from the Commission dated June 30,2015. In correspondence to this office dated June 25, 2015, prior to the provision of the records, Mr. Wallack objected to the exemptions claimed by the Commission. Mr. Wallack contends the Commission is prohibited from redacting any information other than that specifically stated in its statute. Mr. Wallack also objected to the Commission's statement that there is a "requirement" to redact exempt information from the SFI records; Mr. Wallack believes that the Commission is permitted to disclose the withheld information, as the exemptions to the Public Records Law are discretionary. Presumption that government records are public; custodial burden of specificity to redact 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Deirdre Roney, Esq. SPR15/504 Page Two September 25, 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). State Ethics Commission, Statements of Financial Interest The Commission was created under Section 2 of Chapter 268B ofthe Massachusetts General Laws. Among its other duties, the Commission is charged with review of "statements and reports filed" with the Commission. Certain government employees are required to file a statement of financial interest, or SFI, with the Commission to assist the Commission in its role of enforcing the Commonwealth's conflict of interest laws. In reviewing its responses, it appears the Commission received more than 3,800 SFI filings in 2014. When the Commission receives a request for disclosure of an SFI, the language of Chapter 268B directs that the Commission shall, "in its discretion," "exempt from public disclosure" portions of the SFI that contain "the home address of the filer." The Commission must also "forward a copy" of any request for copies of SFis "to the person whose statement has been examined." G. L. c. 268B, § 3(d). Under Section 3(f) of Chapter 268B the Commission must "inspect all statements of financial interest filed with the commission in order to ascertain whether any reporting person has failed to file such a statement or has filed a deficient statement." G. L. c. 268B, § 3(d). Further, as the "primary civil enforcement agency for violations" of this chapter, the Commission must "preserve all statements and reports filed with the commission for a period of six years from the date of receipt. G. L. c. 268B, § 3(i), (h), respectively. The term "public records" applies to all government records In his petition to this office Mr. Wallack argues, "the exemptions in the Public Records Law do not apply to other documents, such as financial disclosure forms, that are specifically required to be public under a separate statute." By Mr. Wallack's definition an exemption may not be applied to a record deemed public by statute. The term "public records" applies to all government records "unless such materials or data fall within" one of the enumerated exemptions. G. L. c. 4, § 7 (26). SFI documents are public records. A public record may be redacted, pursuant to an exemption. The relevant portion of the Commission's statute permits discretionary redaction of the "home address of the filer." This in no way prohibits redaction based upon a specifically cited exemption. The Commission's use ofwords like "required" is immaterial Mr. Wallack argues the Commission's use of words like "require redaction" suggests a belief by the Commission that application of exemptions are not discretionary. Unless otherwise

Ms. Deirdre Roney, Esq. SPR15/504 Page Three September 25, 2015 noted by the language of the exemption or other applicable law, administrative or judicial precedent, the application of exemptions to public records is discretionary. The Commission did use the words "require redaction" to justify redacting portions of the responsive records. However, use of such words is immaterial so long as a custodian has met the burden of specificity to withhold or redact a public record. Applicability of cited exemptions to redact portions of SFis; discretionary redaction The Commission redacted the portions of the SFis that disclosed home addresses and home telephone numbers of filers, as well as the names, home addresses and home telephone numbers of public employees' family members, the names of trusts that incorporate the names and/or addresses of public employees and their family members, and the personal email addresses of public employees and their family members. The Commission cited exemptions and statutory authority to justify such redactions. G. L. c. 4, § 7 (26) (a), (c), (o), (p); G. L. c. 268B, § 3(d). Exemption (c) The Commission's April30 and May 5, 2015 letters explained to Mr. Wallack that the Commission is withholding the personal email addresses of the government SFI filers pursuant to the second clause of Exemption (c) ofthe Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Disclosure of a personal email address is analogous to disclosing an unpublished telephone number. The disclosure of a personal email address associated with the SFI is to provide point of contact information to the Commission. I find the public interest in disclosure of a private email address does not outweigh the privacy interest of the holder of the email address.

Ms. Deirdre Roney, Esq. SPR15/504 Page Four September 25, 2015 Exemptions (o ) and (p) The Commission redacted home addresses and home telephone numbers of the filers, names, addresses and telephone numbers of family members of the filers, as well as the names and addresses of private trusts that have incorporated the name of the filer or the filer's family members pursuant to Exemptions ( o) and (p) of the Public Records Law. Exemption ( o) permits the withholding of "the home address and home telephone number" of certain public employees where such information is "in the custody of a government agency which maintains records identifying persons as falling within" the categories outlined in the exemption. Exemption (p) permits withholding of similar information for "a family member of a commonwealth employee" as identified in Exemption ( o ). G. L. c. 4, § 7 (26) ( o ), (p ). I find the Commission has met its burden of specificity to justify redaction of such information as outlined in each of these two exemptions to the Public Records Law. Conclusions For the reasons stated above I find the Commission acte within its discretion in responding to a request for copies of SFI documents. cc: Mr. Todd Wallack