John Hilliard v. Office of the Auditor of the Commonwealth (SPR 20160272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 19,2016 SPR16/272 Mr. Timothy V. Dooling, Esq. Deputy Auditor and General Counsel Office of the Auditor of the Commonwealth One Ashburton Place, Room 1819 Boston, MA 02108 Dear Deputy Auditor Dooling: I have received the petition of John Hilliard, a freelance reporter, appealing the response of the Office of the Auditor of the Commonwealth (Auditor) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hilliard requested fourteen (14) separate categories of records relating to the February 2016 audit of the Supreme Judicial Court Clients' Security Board and Fund. The Auditor denied Mr. Hilliard's request for eight (8) categories of records pursuant to Exemption (a) and the Supreme Judicial Court's Rule 7 (H). Mr. Hilliard appealed. 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). Records provided- waiver off ees Enclosed with April 26, 2016 written response, the Auditor provided Mr. Hilliard with his request for Clients' Security Board annual reports and a list obtained from the Clients' Security Board of media outlets used by the Clients' Security Board responsive to his requests. A custodian of records may assess fees when complying with a public records request. See 950 C.M.R. 32.06. However, as a courtesy, the Auditor waived all applicable fees. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Timothy V. Dooling, Esq. SPR16/272 Page 2 May 19,2016 No records responsive In your April 26, 2016 response, you informed Mr. Hilliard that the Auditor is not the records custodian for the requests of Clients' Security Fund annual reports, Clients' Security Fund audited financial statements and records of interviews conducted to identify the Clients' Security Board's outreach activities to promote itself. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Exemption (a) Your response states that the eight (8) remaining categories of requested records are exempt from disclosure pursuant Supreme Judicial Court Client Security Board Rule 7 (H) as it operates through Exemption (a) of the Public Records Law. The records withheld are Mr. Hilliard's April14, 2016 requests C, E, F, G, H, I, J, and K. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). In a letter dated May 2, 2016, you provided Mr. Hilliard a supplemental response that explains the applicability of Supreme Judicial Court Rule 7 (H) to the remaining responsive records. Specifically, you explain that Rule 7 (H) states "applications, proceedings, investigations, claims, and reports involving specific applications for reimbursement from the Fund and all financial statements furnished by the claimant shall be kept confidential." You further explain the remaining responsive records fall within this provision and are therefore exempt from disclosure. In addition, you indicate the records from the Supreme Judicial Court Clients' Security Board Fund "fall outside the purview" ofthe Public Records Law. You cite Kettenbach v. BBO, 448 Mass. 1019, 1021 (2007) to support this position.

Mr. Timothy V. Dooling, Esq. SPR16/272 Page 3 May 19,2016 In light of the May 2 letter, I find the Auditor met its burden to withhold the remaining responsive records under SJC Rule 7 (H) as it operates under Exemption (a) of the Public Records Law. Therefore, I will not opine on the Auditor's cl im regarding the applicability of Kettenbach. Accordingly, I will consider this admini tive peal closed. cc: Mr. John Hilliard