Matthew Stout v. Massachusetts Bay Transportation Authority - Police Association Retirement Plan (SPR 20160349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 26,2016 SPR16/349 Mr. Randall E. Nash Attorney at Law 111 Devonshire Street, Fifth Floor Boston, MA 021 09 Dear Attorney Nash: I have received the petition of Matthew Stout of the Boston Herald appealing the response of Massachusetts Bay Transportation Authority Police Association Retirement Plan (Plan) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Stout requested a "list of the current pensioners receiving retirement benefits through the MBTA Police Retirement Fund, the amounts in benefits he or she receives annually, and the year he or she retired." The Plan denied access to the responsive records and Mr. Stout appealed. Previous appeal This request was the subject of a previous appeal. See SPR16/289 Determination of the Supervisor of Records (May 13, 2016). In my May 16 determination I found it was unclear which, if any, exemption to the Public Records Law the Plan claimed to withhold the responsive records. Further, it was unclear whether the Plan maintains it is not subject to the Public Records Law. I closed the appeal with the proviso that the Plan provides Mr. Stout with a response to the request, provided in a manner consistent with the order. The Plan responded to the order in a letter dated May 19,2016 by claiming it is not subject to the Public Records Law. Mr. Stout appealed this response. May 19 response In the Plan's May 19 response, you explain "[t]he structure and character ofthe Plan are identical to the structure and character ofthe MBTA Retirement Fund." Further, you state "the funds contributed to the Plan, like the funds contributed to the MBTA Retirement Fund, are a contractually determined form of employee compensation. Upon transfer to the Plan, the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Randall E. Nash, Esq. SPR16/349 Page 2 May 26,2016 contributed funds are irrevocable and become private in nature." You explain the Plan "does not receive or expend public funds" and is "not subject to the Public Records Law." In his appeal petition, Mr. Stout cites a Superior court decision dated March 9, 2016 concerning the Retirement Board of the Massachusetts Bay Transportation Authority Retirement Fund (Board). See Boston Globe Media Partners, LLC v. Ret. Bd. of the Massachusetts Bay Transp. Auth. Ret. Fund, Suffolk Sup. No. 1484CV01624 (March 9, 2016). In the above referenced case, the court interpreted a 2013 amendment to the definition of "Public Records" and found "the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions." Id; see also G. L. c. 4, § 7 (26). The court found that this amendment applied the Public Records Law to the MBTA Retirement Fund. Based on the Plan's May 19 response explaining the similarities between the Plan and the MBTA Retirement Fund, it is unclear how the reasoning in the above decision does not apply to the Plan, or how the result would differ from a Public Records Law perspective. I understand an attorney in my office contacted you about this matter. Conclusion Accordingly, the Plan is hereby ordered to provide Mr. Stout a response to the request, provided in a manner consistent with this order, the Public Records Law as amended, its Regulations and applicable case law. If the Plan maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Stout a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. 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, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. 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.

Mr. Randall E. Nash, Esq. SPR16/349 Page 3 May 26,2016 In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. lease contact my office directly at the telephone number provided in this determination ~~ rth information. n Supervisor of Records cc: Mr. Matthew Stout