Hilliard, John v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20150881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 6, 2016 SPRlS/881 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 John Hilliard 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, Mr. Hilliard requested copies of disciplinary reports and Snapshot reports issued by the Financial Industry Regulatory Authority (FINRA) since January 1, 2005. Mr. Hilliard also requested Division "enforcement actions" from January 1, 2005 to the present. Mr. Hilliard appealed the Division's response to these requests. Records issued by FINRA In your response, you explain that FINRA "maintains the referenced disciplinary and snapshot reports. The Division has access to the reports through FINRA and its Central Registration Depository." Further, you state "Division does not maintain the requested reports within its custody. As such, there are no documents responsive to your requests for these records." In an email to Mr. Hilliard, you directed him to send this request to the appropriate FINRA District Office. Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); 32 Op. Atty Gen. 157, 165 (May 18, 1977). A record custodian's responsibility extends to records that are within his routine access or control. See 950 C.M.R. 32.03. Whereas the Division does not maintain these reports and has access to them through FINRA, I find it is not the custodian of these responsive records. Accordingly, I will consider this portion of the appeal closed. 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. SPR15/881 Page2 January 6, 2016 Request for Division "enforcement actions" In the Division's response to Mr. Hilliard's request, you state "your request for enforcement actions does not provide a reasonable description of the desired information as required by 950 C.M.R. 32.05(4 ). You further state "[b ]ased on the information you have currently provided, the custodian is unable to make a reasonable search through the records maintained by the Division for the items you are requesting. As such, there are no documents responsive to your enforcement actions request." In an email to Mr. Hilliard, you explain that the Division does not post to its website all documents related to all of its actions. You also informed Mr. Hilliard he may provide specific docket numbers or describe the sought records with more particularity in an attempt to facilitate a search for records. In a conversation with an attorney on my staff, you explained it is unclear what type of records Mr. Hilliard sought when he requested "enforcement actions." For example, you explained responsive records could include complaints, consent orders, or other documents. You also indicated you have reached out to Mr. Hilliard in an attempt to ascertain the types of records he is seeking. I understand you will continue to do so. See 950 CMR 32.05(4). Conclusion As a result, I will consider this appeal closed with the proviso that the Division coordinates with Mr. Hilliard to determine the types of records responsive to his request for "enforcement actions" from January 1, 2005 to the present. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Mr. John Hilliard