Leonard A. Simon v. State Ethics Commission (SPR 20171009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2017 SPR17/1009 Deirdre Roney, Esq. State Ethics Commission One Ashburton Place, Room 619 Boston, MA 02108 Dear Attorney Roney: I have received the petition of Leonard Simon appealing the response of State Ethics Commission (Commission) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2017, Mr. Simon requested "the name and address of a complainant" in an ethics complaint file. In a response dated June 26, 2017, the Commission denied his request under Exemption (a) of the Public Records Law. See 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, § 10A(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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Deidre Roney SPR17/1009 Page 2 August 3, 2017 Purpose of request Please note that the reason for which a requestor seeks access to, or a copy of, a public . record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Simon's purpose in making the request has no bearing on the public status of any existing responsive records. Tlte Commission's June 26th response In its June 26th response, the Commission denied access to the responsive record pursuant to G. L. c. 268B, § 4(a), as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Exemption (a) Exemption (a), 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, 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. Gen. Chern. Corp. v. Dep't of Envtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The Commission has cited G. L. c. 268B, § 4(a) as applicable to withhold the records pursuant to Exemption (a). G. L. c. 268B, § 4(a) in pertinent part reads: ... All commission proceedings and records relating to a preliminary inquiry or initial staff review to determine whether to initiate an inquiry shall be confidential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. ..." (emphasis added). G. L. c. 268B, § 4(a).

Deidre Roney SPR17/1009 Page 3 August 3, 2017 The Commission indicates that in response "to your letter dated June 22, 2017 requesting the name and address of the complainant in Preliminary Inquiry No .... , [d]ocuments concerning Commission investigations are not considered public records under G. L. c. 268B, § 4(a)." You also indicate that "Section 7 of G. L. c. 268B further provides, 'any person who violates the confidentiality of a commission inquiry under the provisions of paragraph (a) of section four of this chapter shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both."' You further indicate that "[t]he Supervisor of Public Records has repeatedly read § 4 G. L. c. 268B to specifically exempt from the [P]ublic [R]ecords [L]aw all proceedings and records in a Commission preliminary inquiry or initial staff review ...." Therefore, "your request is denied, for the reasons set forth above." The records responsive to Mr. Simon's request relate to a preliminary inquiry. Under the Code of Massachusetts Regulations regarding Commission proceedings, "the nature or existence of a preliminary inquiry involving allegations of violations of G.L. c. 268A or 268B, or of an initial staff review to determine whether to conduct a preliminary inquiry, shall be kept confidential by members and employees of the Commission." See 950 CMR 3.01(2); see also Lafferty v. Martha's Vineyard Comm'n, No. 033397,2004 Mass. Super. Ct. LEXIS 107, at *18 (April 9, 2004) (concluding that G. L. c. 268B, § 4(a), mandates confidentiality on the part of the Ethics Commission and allows nondisclosure on the part of the "requesting person"). Conclusion Accordingly, whereas I find that the Commission has properly withheld the responsive record pursuant to G.L. c. 268B, § 4(a) as it operates through Exemption (a), I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Leonard Simon