David P. Russman, Esq. v. Consumer Affairs and Business Regulation (SPR 20170046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2017 SPR17/046 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of David P. Russman, Esq. appealing the response of the Office of the Attorney General- Consumer Protection Division (AGO) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Russman requested a copy of: 1. All consumer complaints filed with the AGO against Safe Home Security, Inc. (SHS), regarding SHS' s alleged automatic contract renewals and unfair billing and collection practices, and 2. All consumer complaints filed with the AGO against Frank J. Maier, Esq. or against the Law Office of Frank J. Maier & Associates regarding unfair collection practices or violations of federal or Massachusetts laws and regulations concerning fair debt collection practices. Prior appeals and present appeal The responsive records were the subject of three prior appeals and determinations by this office. See SPR16/851, SPR16/1006 and SPR16/1159 Determinations of the Supervisor of Records (October 19, 2016, November 29, 2016 and December 16, 2016). The AGO provided responses on September 2ih and November 18,2016 denying the request pursuant to Exemption (f) of the Public Records Law. Attorney Russman appealed. The Supervisor ofRecords closed SPR16/851 with the proviso that the AGO provide Attorney Russman a supplemental response to support its Exemption (f) claim to withhold the records in their entirety. The AGO provided a supplemental response on November 18, 2016. Attorney Russman has appealed the AGO's November 18th response, and the present appeal was opened. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lorraine A. G. Tarrow, Esq. SPR17/046 Page 2 January 20, 2017 Right of access depends on content of records rather than interest of requester In his petitions to this office, Attorney Russman mentions that his firm represents SHS and that his client is interested in obtaining copies of any complaints to "permit SHS to evaluate these complaints in order to more effectively serve the needs of' its customers. It is important for Attorney Russman and his client SHS to understand that the status or interests of SHS affords no greater right of access to the requested information. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief ofPolice of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the status of Attorney Russman or his client will play no role in a determination as to whether the records should be disclosed to the public. Attorney Russman provided this office with a copy of a blank Consumer Complaint Form that is used by private individuals (complainants) to file a complaint against a business or organization to the AGO's Consumer Advocacy & Response Division. It is Attorney Russman's contention that because the form states that the complaint is a public record, and that the complaint may be released to the business or organization that the complainant has filed the complaint against, the AGO cannot withhold the complaints. It is important for Attorney Russman to understand that while the form states that the complaint is considered a public record, the form also states that the AGO "may release any and all information with regard to this complaint, including the form itself, to the business or organization ... " (emphasis added). The Public Records Law presumes that all government records are public record; however, a records custodian has discretion under the Public Records Law to withhold a record that falls under an exemption. See G. L. c. 4, § 7(26)(a-u). 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) (emphasis added). 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.

Lorraine A. G. Tarrow, Esq. SPR17/046 Page 3 January 20, 2017 Exemption (f) In its November 18,2016 response to your public record request, the AGO explained that it would withhold the requested records pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, 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). Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry asto what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. The requested records are consumer complaints filed against Attorney Russman's client and another individual and/or business entity that Attorney Russman specifically named in his August 24, 2016 public records request. The AGO has informed Attorney Russman and this office that the complaints are the subject of the AGO's active and on-going investigation. The AGO explains that under Exemption (f) a records custodian may withhold investigatory materials that are created, received, collected or gathered prior to or during the course of open or ongoing investigations. Investigation records also include records that display investigative techniques or sources; and records about, interviews with or statements from complainants and witnesses relating to matters under investigation.

Lorraine A. G. Tarrow, Esq. SPR17/046 Page 4 January 20, 2017 As Attorney Russman is aware, due to his relationship as Legal Counsel to the subject of the investigation, the AGO has issued Civil Investigation Demands (CIDs) for records to the target businesses under procedures and provisions in the Consumer Protection Laws regarding investigations. See G. L. c. 93A, § 6. These target businesses have objected to providing certain records in response to the CIDs by filing actions in Suffolk County Superior Court. The AGO has stated in both their September 27th and November 18th responses that the complaints are central to the AGO's active and open investigation, and knowledge of the nature and type of information contained within the complaints may influence what records the targets of the investigation ultimately provide in response to the AGO's CID questions, or how the litigation surrounding these CIDs might proceed. The AGO posits that even if the two hundred fifty-nine (259) consumer complaints are provided by redacting the identifying information in the complaints, Attorney Russman and his client have enough knowledge about the customer base that there is a grave risk of identifying the complainants. The complaints and the information that is still being provided by the complainants are sources of information that is fueling the investigation, and if these individuals can be identified, the AGO would not be able to protect the complainants from fear of intimidation or an invasion of privacy. Therefore, it is the AGO's contention that disclosure of the complaints would compromise their effective law enforcement by prematurely releasing the nature and course of their open investigation, alerting targets to the scope of potential or planned enforcement actions, taint the pending CID process and cause a "chilling effect" on complainants to further speak candidly about matters under investigation. Accordingly, I find that the AGO, through its November 29,2016 supplemental response, has met its statutory and regulatory obligation of supporting its Exemption (f) claim to withhold the compfaints in their entirety. This administrative appeal is closed. If Attorney Russman 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. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: David P. Russman, Esq.