Thomas O. Egan v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20160070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 1, 2016 SPR16/070 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 Timothy 0. Egan, Esq. of the law firm Peabody & Arnold, LLP appealing the response of the Massachusetts Securities Division (Division) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Lynne A. Fleming, also of Peabody & Arnold, LLP requested nineteen (19) categories of records. These requests include copies of correspondence, communications, transcripts, complaints, interviews, notes, and memoranda related to a specifically identified administrative proceeding involving the Division. In an initial response dated November 3, 2015, the Division provided certain responsive records, explained that others do not exist, and withheld others under Exemptions (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(d), (f). Attorney Egan appealed the Division's responses to Requests 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, and 17. The Division provided a supplemental response to this office in a letter dated February 22,2016. 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). 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. SPR16/070 Page 2 March 1, 2016 added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 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 of the requester. See Bougas v. Chief of Police 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 Egan may wish to consider another means of seeking to obtain any existing responsive records. Exemption (d) In its November 3 response the Division provided certain records responsive to Requests 1 and 2 but withheld other records responsive to these requests under 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. 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

Mr. Patrick M. Costello, Esq. SPR16/070 Page 3 March 1, 2016 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, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107,*10 (2004). In its February 22 letter, you indicate certain responsive records fall within the definition of"investigatory materials" set forth in 950 C.M.R. 14.413 as discussed further below. You also explain how the Division's Enforcement Section's (Enforcement Section) investigation of the subject matter of the requests is "current and ongoing." Further, you explain "[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 the withheld records responsive to Requests 1 and 2 are investigatory materials that concern ongoing administrative proceedings. 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 these responsive records. Exemption (/) In its November 3 response, the Division explained it is withholding records responsive to Requests 3, 4, 6, 7, 8, 9, 10, 11, and 17 under Exemption (f). Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enfor~ement or other investigatory officials 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 G. L. c. 4, §7 (26)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.l8 (1979).

Mr. Patrick M. Costello, Esq. SPR16/070 Page 4 March 1, 2016 In its February 22 letter, the Division claims records responsive to these requests "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 ... which 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). The Division explains that "[a]ny disclosure of the requested correspondence, documents, or other materials would reveal the investigative techniques of the [Enforcement Section] which would compromise the Enforcement Section's efforts and prejudice its effective enforcement of the Massachusetts Uniform Securities Act." Further, the Division states it "may withhold confidential investigative techniques indefinite! y if their disclosure would prejudice future enforcement actions." As discussed above, the Enforcement Section's investigation of the subject matter of the requests is "current and ongoing" and you explain that "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 Requests 3, 4, 6, 7, 8, 9, 10, 11, and 17 are investigatory materials whose disclosure would interfere with ongoing enforcement activities. 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 these responsive records. Accordingly, I will not opine on the Division's claim that Exemption (d) applies to these records. Request 15 and Request 16 Requests 15 and 16 were for "motions or requests to disqualify" specifically identified individuals "in any administrative or adjudicatory action filed between 2010 and the present, and the result of the motion or request." In its November 3 response, the Division explained it is unable to provide responsive records to these requests because it is "unable to search, sort, or otherwise query its records by motion." In a conversation with an attorney on my staff, you indicated the Division would be willing to review Requests 15 and 16 and provide a supplemental response to these requests.

Mr. Patrick M. Costello, Esq. SPR16/070 Page 5 March 1, 2016 No duty to create records In his appeal petition, Attorney Egan requests this office order the Division to create certain records. Under the Public Records Law, the Division is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). Conclusion With respect to Requests 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 17, I find the Division has properly withheld responsive records under Exemptions (d), (f), and 950 C.M.R. 14.413. Accordingly, I will consider these portions of the appeal closed. With respect to Requests 15 and 16, I will consider this appeal closed with the proviso that the Division provides a response to Requests 15 and 16 within ten (1 0) days. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, a good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) ( ere cost of complying with a request for public records is expected to exceed ten dollars ($1 .00), custodian of records shall provide written good faith estimate). cc: Mr. Timothy Egan, Esq.