Todd Feathers v. Department of Revenue - Litigation Bureau (SPR 20161016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 5, 2016 SPR16/1016 Roger H. Randall, Esq. Tax Counsel -Litigation Bureau Department of Revenue ih 100 Cambridge Street, Floor Boston, MA 02114-9565 Dear Attorney Randall: I have received the petition of Todd Feathers appealing the October 26, 2016 response of the Department of Revenue (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on September 23, 2016 Mr. Feather requested a copy of: all records created by the Department since January 1, 2015 that record the transfer/sale of a Massachusetts tax credit from one party to another. This request includes communications sent from the Department to interested parties, individual records created for internal use by the Department, and/or databases/spreadsheets used to track the transfer of credits. Prior Appeal The September 2016 request was the subject of a prior appeal and determination. See 16/842 Determination of Supervisor of Records (October 18, .20 16). I closed the prior appeal with the proviso that the Department provides a more detailed response to Mr. Feathers. The Department provided a detailed supplemental response to this office, copying Mr. Feathers, on October 26, 2016. Basis of Current Appeal Mr. Feathers appealed the October 26 response from the Department. Mr. Feathers states in his petition, stating his belief that "some, if not all, of the records [Mr. Feathers] requested should be released." Mr. Feathers further states that he is "am willing to withdraw [his] request for all documents with one exception: [Mr. Feathers] still request[ s] a copy of any centralized database or spreadsheet the Department maintains to track the transfer of tax credits." One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.rna.us

Roger H. Randall, Esq. SPR16/1016 Page 2 December 5, 2016 The Public Records Law 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). 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. Exemption (a) In your October 26 letter, you indicate that the Department is "expressly prohibited by statute and regulation from disclosing the information requested. 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). Relevant statutory and regulatory bases for denial ofa ccess The Department explains that the initial recipient of a tax credit is a public record. G. L. c. 62C, § 89. You further explain that any subsequent transfer of a tax credit is not subject to the provisions of this section, and is therefore considered a transfer statement. Such transfer statements, as you explain, are considered "any information contained in or set forth by any return or document filed with the commissioner," and such information is specifically exempted from disclosure by statute. G. L. c. 62C, § 21(a); 830 C.M.R. 62C.21.1.

Roger H. Randall, Esq. SPR16/1016 Page 3 December 5, 2016 Penalties for unauthorized disclosure In your response, you explain that the penalties for unauthorized disclosure of "any return or document filed with the commissioner" include "a fine, imprisonment, and loss of employment." G. L. c. 62C, § 21(c). Conclusion Your response explains that information regarding the initial recipient of a tax credit is a public record. Your response further explains why any subsequent transfer of such a tax credit is specifically exempted from disclosure by statute. I find the Department has satisfied its statutory and regulatory obligations to specifically state the reasons for denying access to a government record. If Mr. Feathers is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: Todd Feathers