Donnelly, Thomas v. Department of Revenue (SPR 20150583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/583 Mr. David Berch, Esq. Legal Division - Litigation Bureau Massachusetts Department of Revenue 100 Cambridge Street, 7th Floor P.O. Box 9565 Boston, MA 02114 Dear Attorney Berch: I have received the petition of Thomas Donnelly of NBC Universal Media, LLC appealing the response of the Massachusetts Department of Revenue (DOR) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Donnelly requested copies of all audit narratives and audit logs prepared in connection with DOR's audit of the National Broadcasting Company, Inc. and its affiliates during a specified time period. Previous determination This request was the subject of a previous appeal. See SPR15/039 Determination of the Supervisor of Records (April 10, 20 15). In my April 10 Determination, I declined to opine on whether DOR's responses complied with the Public Records Law due to the availability of alternate methods of acquiring records afforded to NBCUniversal Media, LLC as a taxpayer seeking its own tax information. DOR subsequently provided the requested audit logs, audit narratives, and audit files in a response to Sarah Wellings ofNBCUniversal Media, LLC and Mr. Donnelly dated April22, 2015. Mr. Donnelly indicates in his appeal petition that the production on April22 "provides more information than its prior productions ... "but "DOR still has failed to comply with [the Public Records Law], as DOR's April22, 2015 production contains redactions for which DOR has no legal basis." After this appeal was opened, DOR provided a supplemental response to this office in a letter dated August 10, 2015. Mr. Donnelly was copied on this letter. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. David Berch, Esq. SPR15/583 Page Two December 7, 2015 Purpose of request; identity of requester Mr. Donnelly is seeking records on behalf ofNBCUniversal Media, LLC as a taxpayer seeking its own tax information. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Mr. Donnelly's status as an officer of the entity seeking this information has no bearing on his access to any existing responsive records under the Public Records Law. DOR's August 10 letter In DOR's letter dated August 10, you indicate that Mr. Donnelly was provided "copies of the audit files, as he is a duly authorized officer of the entity that is the subject of the audit files, and thus may access the entity's tax documents. [G.L.] c. 62C, § 21(a); 830 CMR 62C.21.1(4 )(b )(1 )." In addition, you claim the redactions contained in DOR's April22 response were properly made under G.L. c. 62C, § 21(a)(d) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). You also claim the redactions are proper under the attorney-client privilege. Although you mention the attorney-client privilege, you also claim these redactions are proper under Exemption (d). G. L. c. 4, § 7(26)(d). 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). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Mr. David Berch, Esq. SPR15/583 Page Three December 7, 2015 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G.L. c. 62C, § 21(a)(d) provides in relevant part: The confidentiality provisions and the prohibition as to disclosure contained in this section shall apply to standards used or to be used for the selection of tax returns for examination, data used or to be used for determining such standards and such other materials as reflect audit or compliance selection criteria, audit issue criteria or audit, compliance and collection techniques, if the commissioner determines that disclosure will seriously impair assessment, collection or enforcement under the tax laws. G.L. c. 62C, § 21(a)(d) You indicate that DOR removed several instances of audit selection criteria contained within the documents. You state "disclosing the Department's basis for selecting a taxpayer for an audit would seriously impair assessment, collection or enforcement under the tax laws because it would enable [t]axpayers to simply avoid the conditions the Department examines for audits, thereby frustrating the audit process." With regard to the specific redactions that are the subject ofthis appeal, you state "[t]he redacted references state why the entity at issue was selected for an audit and thus its removal adheres to the plain language of [G.L.] c. 62C, § 21(a)(d)." I find DOR has met its burden in

Mr. David Berch, Esq. SPR15/583 Page Four December 7, 2015 proving that the references to audit selection criteria were properly redacted under G.L. c. 62C, § 21(a)(d) as it operates through Exemption (a). Exemption (d) You also explain in the August 10 letter that other information in the documents was redacted under Exemption (d) because it relates to a series of pending cases before the Appellate Tax Board involving NBCUniversal Media, LLC and DOR. Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26)(d) Exemption (d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Sec'y ofthe Exec. Office ofHuman Servs., 403 Mass. 230, 237 n.8 (1988). Furthermore, the preparation of and involvement in litigation by a public body entails the development of "policy positions" by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha's Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS, *10. You state that "[t]he documents at issue relate to an administrative practice by the Department regarding the application of a tax issue that is also in dispute before the Appellate Tax Board ...." You also provide case names and docket numbers for the pending cases between Comcast ofMassachusetts and DOR. You claim the redactions were proper because they "directly correlate with the subject matter of on-going litigation and constitute policy under development under [G.L] c. 4, § 7, clause 26(d)." I find DOR met its burden of explaining how redactions under Exemption (d) were proper because it explained how the removed information relates to this ongoing litigation matter. As a result, I decline to opine on DOR's attorney-client privilege claim. No duty to create records; itemized document log In his appeal petition, Mr. Donnelly indicates DOR has refused to provide an itemized list setting forth detailed justifications for its exemption claims.

Mr. David Berch, Esq. SPR15/583 Page Five December 7, 2015 Only the Supervisor of Records (Supervisor) may require a custodian to compile an index of requested records; this order is made by the Supervisor to aid in review of a public records appeal. The determination as to whether to order an index lies solely in the hands of the Supervisor. 950 C.M.R. 32.08(7). Further, the duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. Accordingly, whereas a requester may not compel a custodian to create a record, further, whereas only the Supervisor may compel a custodian to create a custodial index, I find DOR's refusal to provide an index did not violate the Public Records Law. Conclusion For the reasons discussed above, I find that, in light of its August 10 letter, DOR has met its burden in proving that the redactions were properly made under G.L. c. 62C, § 21(a)(d) as it operates through Exemption (a) as well as Exemption (d). In addition, DOR did not violate the Public Records Law by refusing to provide an index. Accordin y, I will consider this appeal closed. Supervisor of Records cc: Mr. Thomas J. Donnelly Ms. Sarah Wellings