Wells, Esq., John v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20150883)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 8, 2016 SPR15/883 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 John K. Wells of the law firm Greenberg Traurig, LLP appealing the response of the Massachusetts Securities Division (Division) to his request for public records. G. L. c. 66 § IO(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney David L. Ward, also of Greenberg Traurig, requested twenty (20) categories of records related to a specifically identified administrative proceeding involving the Division. The Division provided certain responsive records and withheld others. Attorney Wells appealed the Division's responses to Request 3, Request 4, and Request 14. The Division withheld records responsive to these requests pursuant to Exemptions (d) and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(d), (f). The Division provided a supplemental response to this office in a letter dated January 7, 2016. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IO(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. SPR15/883 Page 2 January 8, 2016 added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419Mass. at511. · Purpose of request; identity of requester I understand the requested records relate to an ongoing administrative proceeding. 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 ofthe requester. See Bougas v. ChiefofPolice of Lexington, 371 Mass. 59,64 (1976). Accordingly, the reason for making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Ward and Attorney Wells may wish to consider another means of seeking to obtain any existing responsive records. Request 3 Request 3 was for: "[a]ll correspondence and communications, including but not limited to emails and text messages, by and between employees of the Securities Division" concerning or related to a specifically identified administrative proceeding. The Division claims responsive records may be withheld under Exemptions (d) and (f). Exemption (d) 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.

Mr. Patrick M. Costello, Esq. SPR15/883 Page 3 January 8, 2016 Sec'y ofthe Exec. Office of Human 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. The Division claims records responsive to this request are exempt from disclosure under Exemption (d) because the "request regards matters which are currently engaged in active litigation ...." In the supplemental response, the Division explains how responsive records "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)(1-6). The Division states "[i]n light of the administrative proceedings in these matters, the premature disclosure of the Division's investigatory materials would prejudice the Enforcement Section's case during the pendency of such proceedings." I find the Division has met its burden of explaining how records responsive to Request 3 are investigatory materials whose disclosure would interfere with pending enforcement activities. As a result, I find the Division has met its burden of explaining with specificity how Exemption (d) and 950 C.M.R. 14.413 apply to withhold the responsive records. Request4 Request 4 was for "[a]ll correspondence and communications, including but not limited to emails and text messages, between the Clerk to the Presiding Officer and/or the Presiding Officer and any employee of the Securities Division" concerning or related to a specifically identified administrative proceeding. The Division claims records responsive to this request are exempt from disclosure under Exemption (d) because the "request regards matters which are currently engaged in active litigation ...." In the supplemental response, the Division explains how responsive records "fall squarely within the definition of 'investigatory materials' set forth in 950 [C.M.R.] 14.413."'

Mr. Patrick M. Costello, Esq. SPR15/883 Page 4 January 8, 2016 For the reasons discussed above, I find the Division has met its burden of explaining how records responsive to Request 4 are investigatory materials whose disclosure would interfere with pending enforcement activities. As a result, I find the Division has met its burden of explaining with specificity how Exemption (d) and 950 C.M.R. 14.413 apply to withhold the responsive records. Request 14 Request 14 was for "[a]ll notes, memoranda, drafts and other documents" concerning or related to a specifically identified administrative proceeding. The Division claims records responsive to this request are exempt from disclosure under Exemption (d) because the "request regards matters which are currently engaged in active litigation ...." In the supplemental response, the Division explains how responsive records "fall squarely within the definition of 'investigatory materials' set forth in 950 [C.M.R.] 14.413."' For the reasons discussed above, I find the Division has met its burden of explaining how records responsive to Request 14 are investigatory materials whose disclosure would interfere with pending enforcement activities. As a result, I find the Division has met its burden of explaining with specificity how Exemption (d) and 950 C.M.R. 14.413 apply to withhold the responsive records. Conclusion Whereas the Division has properly withheld records responsive to Request 3, Request 4, and Request 14 under Exemption (d) and 950 C.M.R. 14.413, I will consider this appeal closed. cc: Mr. John K. Wells, Esq.