David B. Cosgrove, Esq. v. Office of the Secretary of the Commonwealth - Securities Division (SPR 20160158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/158 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 David Cosgrove Esq., on behalf of his client appealing the response of 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, Attorney Cosgrove's client requested a copy of the transcript of his statements made to the Division. In a response dated January 5, 2016 the Division denied his client's request in its entirety pursuant to Exemption (f), the investigatory exemption to the Public Records Law and 950 C.M.R. 14.413 the Nonpublic Records and Information regulation. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Purpose of request; identity of requester In his petition to the Public Records Division Attorney Cosgrove indicates that his client has a unique right of access to the responsive record. 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 requester5. Access to a record requested pursuant to the Public 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. SPR16/158 Page 2 March 11,2016 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. Exemption (f) In its February 1 response, the Division explained it is withholding the responsive record pursuant to Exemption (f). Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement 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.18 (1979). In its 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)(1-6). The Division explains "[t]hese records contain information that was received as the result of an open investigation and would reveal investigatory techniques of the Division related to an open investigation, the disclosure of which would jeopardize the Division's ability to conduct future investigations."

Mr. Patrick M. Costello, Esq. SPR16/158 Page 3 March 11,2016 I find the Division has met its burden of explaining how the responsive record is investigatory material whose disclosure would interfere with investigatory 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 the responsive record. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. cc: Mr. David B. Cosgrove, Esq.