Steven Morello v. Consumer Affairs and Business Regulation (SPR 20170269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 6, 2017 SPR17/269 Lorraine A.G. Tarrow, Esq. Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Records Access Officer: I have received the petition of Steven Morello appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Morello requested "any and all information/records regarding compensation and assistance provided" to a specified individual. In a response dated February 23, 2017 Anna Marie Meola of the Victim Compensation & Assistance Division denied his request under G. L. c. 12, § 1 lK; G. L. c. 258C, § 4; and 940 C.M.R. 14.09 as they operate through Exemption (a). G. L. c. 4 § 7 (26)(a). 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, § lOA( d); 950 C.M.R. 32.03( 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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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) The AGO denied this request under G. L. c. 12, § 1l K; G. L. c. 258C, §4; and 940 C.M.R. 14.09 as they operate through Exemption (a). 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 SPRl 7/269 Page 2 March 6, 2017 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 Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't of Envtl Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. A GO response In its February 23rd response, the AGO explains the requested records are being withheld under several statutes and regulations as they operate through Exemption (a) The applicable statutes provide in pertinent part: there shall be established within the department of the attorney general a division of victim compensation and assistance to administer the provisions of chapter two hundred and fifty-eight C. The attorney general shall designate a program director of said division. Said program director may appoint and remove, subject to the approval of the attorney general, such investigative, legal, clerical and other assistants as the work of the division may require. The program director shall have the authority to promulgate rules and regulations pursuant to chapter thirty A as may be necessary to carry out the provisions of said chapter two hundred and fifty-eight C. G. L. C. 12, § llK

Lorraine A.G. Tarrow SPRl 7/269 Page 3 March 6, 2017 (c) The program director shall be authorized to apply for and receive sums which may be transmitted to the victim compensation fund maintained by the treasurer and for any other such funds as may become available to administer the requirements of this chapter. G. L. c. 258C, §4(c) All information received, obtained or maintained by the Division in connection with any claim for compensation shall be maintained as confidential investigative material, and shall not be released or disclosed to any person or entity whatsoever, except authorized by the claimant or as otherwise provided by law. 940 C.M.R. 14.09 (Confidentiality of Records) Whereas the responsive records consist of information related to the type of information specifically exempted by statute, I find that the AGO acted properly in withholding the requested records from disclosure. Conclusion Accordingly, whereas the AGO may properly withhold the requested records pursuant to G. L. c. 12, § 1 lK; G. L. c. 258C, § 4; and 940 C.M.R. 14.09 as they operate through Exemption (a), this administrative appeal is closed. If Mr. Morello 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, ~ u r r ~ Supervisor of Records cc: Steven Morello