Frank Phillips v. Executive Office for Administration & Finance (SPR 20160155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/155 Ms. Tori T. Kim, Esq. Deputy General Counsel Executive Office of Administration and Finance State House, Room 3 73 Boston, MA 02133 Dear Attorney Kim: I have received the petition of Frank Phillips of The Boston Globe appealing the response of the Executive Office of Administration and Finance (Office) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Phillips requested copies of records related to the Commissioner of Revenue. Previous Order This request was the subject of a previous appeal. See SPR16/075 Determination of the Supervisor ofRecords (February 18, 2016). In my February 18 determination, I found the Office failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure. Accordingly, I ordered the Office to provide Mr. Phillips a revised response to the request provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). In response to the February 18 order, the Office provided Mr. Phillips a response dated March 2, 2016 in which it provided certain records but withheld specific emails under the attorney-client privilege. Mr. Phillips objects to this response and requests this office take further action. A new appeal (SPR16/155) was opened as a result. In Camera Inspection ofR ecords Upon further consideration of Mr. Phillips' petition, it is the finding of this office that an in camera review of unredacted copies of the responsive emails would facilitate a determination as to the applicability of any exemption claims made by the Office. See 950 C.M.R. 32.08(6). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Tori T. Kim, Esq. SPR16/155 Page 2 March 11, 2016 The authority to require the submission of records for an in camera inspection emanates from the Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Accordingly, you are hereby ordered to provide th's offi e with unredacted copies ofthe responsive emails within five (5) days ofthis order. cc: Mr. Frank Phillips